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EXHIBIT 4.4
INTELLIGENT INFORMATION INCORPORATED
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated
as of this 22nd day of December, 1999 (this "Agreement"), among INTELLIGENT
INFORMATION INCORPORATED, a Delaware corporation (the "Company"), the Purchasers
listed on Schedule A to this Agreement (each, a "SERIES F PURCHASER" and
collectively, the "SERIES F PURCHASERS"), BG MEDIA INVESTORS, L.P., a Delaware
limited partnership ("BG MEDIA"), APEX INVESTMENT FUND III L.P., a Delaware
limited partnership, and APEX STRATEGIC PARTNERS, LLC, a Delaware limited
liability company (together, "APEX"), KEYSTONE VENTURE IV, L.P., a Pennsylvania
limited partnership ("KEYSTONE"), ROBERT M. UNNOLD, STEPHEN G. MALONEY, DONALD
F. CHRISTINO and W. PETER DANIELS (collectively, the "HOLDERS").
PRELIMINARY STATEMENT
The Series F Purchasers have agreed to purchase the Series F
Preferred Stock described below on the condition, among others, that the Company
grant the registration rights set forth in this Agreement.
The Holders (other than the Series F Purchasers) are parties
to the Second Amended and Restated Registration Rights Agreement dated as of
February 12, 1999 by and among the Company and the parties thereto ("PRIOR
AGREEMENT") providing for certain registration rights. The parties hereto wish
to amend and restate the Prior Agreement.
To induce the Series F Purchasers to purchase the Series F
Preferred Stock and in consideration of the mutual representations and
agreements set forth in this Agreement, the Company and the Holders agree as
follows.
AGREEMENT
SECTION 1. DEFINITIONS.
1.1 As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" means any entity controlling, controlled by or
under common control with a designated Person. For the purposes of this
definition, control" shall have the meaning specified as of the date of this
Agreement for that word in Rule 405 promulgated by the Commission under the
Securities Act.
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"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission, and
any successor thereto.
"Common Stock" means the Company's Common Stock, $.01 par
value per share.
"Conversion Stock" means shares of Common Stock issued upon
conversion of the Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Founder" means any of Robert M. Unnold, Stephen G. Maloney,
Donald F. Christino and W. Peter Daniels.
"Holders" means (a) holders as of the date of this Agreement
of Outstanding Registrable Securities, each of whom is a party to this
Agreement, and (b) any subsequent legal or beneficial owner of Outstanding
Registrable Securities who has become a party to this Agreement in accordance
with Section 12 of this Agreement.
"Initiating Holder" means (a) any Investor, provided such
Investor holds at least 50% of the Outstanding Registrable Securities initially
purchased by such Investor and provided that the exercise of any rights by such
Investor are exercised by the Holders of more than 50% of the Outstanding
Registrable Securities then owned by such Investor, (b) any Holders who, in the
aggregate, own not less than thirty percent (30%) of the Company's outstanding
Common Stock or (c) any Holders who, in the aggregate, own Preferred Stock
convertible into not less than thirty percent (30%) of the Company's Common
Stock.
"Investor" means any of the Series F Purchasers as a group, BG
Media, Apex and Keystone and their permitted transferees and assigns.
"Outstanding Registrable Securities" means (a) any shares of
Preferred Stock then outstanding; and (b) any shares of Common Stock then
outstanding which were issued upon conversion of Preferred Stock; and (c) any
shares of Common Stock then outstanding which were issued as, or were issued
directly or indirectly upon the conversion of other Securities issued as, a
dividend or other distribution with respect to, or in replacement of, Preferred
Stock or other Registrable Common Stock; and (d) any shares of Common Stock
outstanding as of the date of this Agreement in the name of a Founder and which
are then outstanding in the name of a Founder or a permitted assignee of a
Founder (provided such assignee has become party to this Agreement in accordance
with Section 12 below).
"Person" means an individual, partnership, corporation,
business trust, limited liability company, joint stock company, trust,
unincorporated association, joint venture, or other entity of whatever nature.
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"Preferred Stock" means Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock.
"Registrable Common Stock" means (a) any shares of Common
Stock then outstanding which were issued upon conversion of Preferred Stock; and
(b) any shares of Common Stock then issuable upon conversion of then-outstanding
Preferred Stock; and (c) any shares of Common Stock then outstanding which were
issued as, or were issued directly or indirectly upon the conversion of other
Securities issued as, a dividend or other distribution with respect to, or in
replacement of, Preferred Stock or other Registrable Common Stock; and (d) any
shares of Common Stock then outstanding which are issued in the name of a
Founder or a permitted assignee of a Founder (provided such assignee has become
party to this Agreement in accordance with Section 12 below); and (e) any shares
of Common Stock then issuable directly or indirectly upon the conversion or
exercise of other Securities issued as a dividend or other distribution with
respect to, or in replacement of, Preferred Stock or other Registrable Common
Stock; provided, however, that outstanding shares of Common Stock shall no
longer be Registrable Common Stock when they shall have been (y) effectively
registered under the Securities Act and sold by the holder thereof in accordance
with such registration, or (z) sold to the public pursuant to Rule 144.
"Rule 144" means Rule 144 promulgated by the Commission under
the Securities Act, as such rule may be amended from time to time, or any
successor Rule thereto.
"Securities" means any debt or equity securities of the
Company, whether now or hereafter authorized, and any instrument convertible
into, or exercisable or exchangeable for, Securities or a Security.
"Securities Act" means the Securities Act of 1933, as amended.
"Series B Preferred Stock" means (a) the outstanding shares of
the Company's Series B Preferred Stock, $.01 par value; (b) any shares of Series
B Preferred Stock issued in payment of a dividend upon any share of Series B
Preferred Stock and (c) any other Securities issued as a dividend or other
distribution with respect to, or in replacement of, any Series B Preferred Stock
except shares of Registrable Common Stock.
"Series C Preferred Stock" means (a) the outstanding shares of
the Company's Series C Preferred Stock, $.01 par value; (b) any shares of Series
C Preferred Stock issued in payment of a dividend upon any share of Series C
Preferred Stock and (c) any other Securities issued as a dividend or other
distribution with respect to, or in replacement of, any Series C Preferred Stock
except shares of Registrable Common Stock.
"Series D Preferred Stock" means (a) the outstanding shares of
the Company's Series D Preferred Stock, $.01 par value; (b) any shares of Series
D Preferred Stock issued in payment of a dividend upon any share of Series D
Preferred Stock and (c) any other Securities
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issued as a dividend or other distribution with respect to, or in replacement
of, any Series D Preferred Stock except shares of Registrable Common Stock.
"Series E Preferred Stock" means (a) the outstanding shares of
the Company's Series E Preferred Stock, $.01 par value; (b) any shares of Series
E Preferred Stock issued in payment of a dividend upon any share of Series E
Preferred Stock and (c) any other Securities issued as a dividend or other
distribution with respect to, or in replacement of, any Series E Preferred Stock
except shares of Registrable Common Stock.
"Series F Preferred Stock" means (a) the outstanding shares of
the Company's Series F Preferred Stock, $.01 par value; (b) any shares of Series
F Preferred Stock issued in payment of a dividend upon any share of Series F
Preferred Stock and (c) any other Securities issued as a dividend or other
distribution with respect to, or in replacement of, any Series F Preferred Stock
except shares of Registrable Common Stock.
"Short Form" means Form S-2 or Form S-3 under the Securities
Act, and any other form promulgated after the date of this Agreement applicable
in circumstances substantially comparable to either of those forms, regardless
of its designation.
1.2 For purposes of references in this Agreement to Securities
"equivalent to" an amount of Registrable Common Stock issued and issuable, (a) a
Holder of Preferred Stock will be deemed to be the Holder of Registrable Common
Stock issuable upon conversion of such Preferred Stock but not then issued
(disregarding any legal restriction then applicable to the conversion of such
Preferred Stock), and (b) the Registrable Common Stock issuable but not then
issued with respect to outstanding Preferred Stock will be included in the total
number of Registrable Common Stock.
SECTION 2. REGISTRATIONS ON LONG FORMS.
2.1 By a written notice to the Company at any time after six
(6) months following the effective date of the first registration statement
filed by the Company covering a public offering of its Securities, any
Initiating Holder may from time to time request that the Company register any
Registrable Common Stock specified in the notice, under the Securities Act and
under other relevant securities laws, for disposition in accordance with methods
stated in the notice.
2.2 When it receives a registration notice under Section 2.1,
the Company shall promptly deliver a copy of the registration notice to each
Holder who is not a party to the registration notice, each of whom may then
specify, by prompt notice to the Company, a number of shares of Registrable
Common Stock held by or issuable to it which it wishes to include in any
registration pursuant to the registration notice under Section 2.1.
2.3 When it receives a registration notice under Section 2.1,
the Company shall use its best efforts (a) to file a registration statement
under the Securities Act as soon as practicable, and in any event within sixty
(60) days of the receipt of such request, and (b) to
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effect the registration under the Securities Act of Registrable Common Stock
held by Holders specified in the registration notice under Section 2.1 and
subsequent notices under Section 2.2 that are received within twenty (20) days
after the mailing of the notices under Section 2.2, all to the extent requisite
to permit disposition by such Initiating Holder and each Holder requesting
Registrable Common Stock to be included in such registration in accordance with
the intended methods of disposition described in the registration notice.
SECTION 3. REGISTRATIONS ON SHORT FORMS.
3.1 If at any time the Company is a registrant entitled to use
a Short Form to register the resale of Registrable Common Stock by a Holder, any
Initiating Holder may, by a written notice to the Company, request that the
Company register such Holder's Registrable Common Stock specified in the notice
on a Short Form.
3.2 When it receives a registration notice under Section 3.1,
the Company shall promptly deliver a copy of the registration notice to each
Holder who is not a party to the registration notice, each of whom may then
specify, by prompt notice to the Company, a number of shares of Registrable
Common Stock held or issuable to it which it wishes to include in any
registration pursuant to the registration notice under Section 3.1.
3.3 When it receives a notice under Section 3.1, the Company
shall use its best efforts to effect the expeditious registration under the
Securities Act, on the Short Form specified in the notice, of Registrable Common
Stock specified in the notice.
SECTION 4. INCIDENTAL REGISTRATION. The Company shall give at
least sixty (60) days' advance written notice to each Holder of the Company's
intention to register any of its Securities under the Securities Act. Each
Holder may then specify, by notice given to the Company within ten (10) business
days after the Company's notice, a number of shares of Registrable Common Stock
held by it which it wishes to include in the Company's proposed registration.
Subject to the market cutback limitations of Section 9, the Company will use its
best efforts to effect the registration under the Securities Act of Registrable
Common Stock specified by Holders under this Section 4.
SECTION 5. LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding
any contrary provision of this Agreement:
(a) the Company shall not be required to effect more than six
(6) registrations pursuant to Section 2, two (2) for the Series F
Purchasers as a group and one (1) for each of (i) the Founders as a
group, (ii) BG Media and its permitted transferees and assignees as a
group, (iii) Keystone and its permitted transferees and assignees as a
group and (iv) Apex and its permitted transferees and assignees as a
group, provided, however, that such party demanding the registration
qualifies as an Initiating Holder at the time of such demand (provided,
however, that a demand for registration shall not count as a
registration permitted pursuant to Section 2 under this clause (a) if
either (y) the registration statement filed with respect to such
registration is not declared effective by
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the Commission, or (z) the Holders requesting registration of
Registrable Common Stock under Sections 2.1 and 2.2 do not register and
sell at least 90% of the Registrable Common Stock they have requested
be registered in such registration for reasons other than their
voluntary decision not to do so); and
(b) the Company shall not be required to effect any
registration pursuant to Section 2 if the Company shall furnish to the
Investors a certificate signed by the President and Chief Executive
Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such registration statement to be
filed and that it is essential to defer the filing of such registration
statement, then the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the request
from the Investors and provided further that the Company may not
utilize this right more than once; and
(c) Section 4 shall not apply to a registration effected
solely to implement an employee benefit plan or to any other form or
type of registration which does not permit inclusion of Registrable
Common Stock pursuant to Commission rule or practice.
SECTION 6. REGISTRATION PROCEDURES.
6.1 Whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any Registrable
Common Stock under the Securities Act, the Company will, as expeditiously as
possible:
(a) in the case of a registration required under Section 2,
engage the underwriters designated in accordance with Section 13 below;
(b) before filing each registration statement or prospectus or
amendment or supplement thereto with the Commission, furnish counsel
for the sellers with copies of all such documents proposed to be filed,
and obtain the approval of such counsel with respect to all disclosures
contained therein relating to sellers;
(c) prepare and file with the Commission a registration
statement with respect to such Registrable Common Stock and use its
best efforts to cause such registration statement to become and remain
effective for the period provided in Section 6.2;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Registrable
Common Stock covered by such registration statement in accordance with
the intended methods of disposition set forth in such registration
statement;
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(e) prepare and promptly file with the Commission, and notify
each seller of such Registrable Common Stock immediately after the
filing of, such amendment or supplement to such registration statement
or prospectus as may be necessary to correct any statements or
omissions if, during such periods as a prospectus relating to such
Securities is required to be delivered under the Securities Act, any
event shall have occurred as the result of which any such prospectus or
any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, and notify each
seller immediately after its discovery of such event;
(f) furnish to the underwriters and each seller of such
Registrable Common Stock such numbers of copies of such registration
statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), copies of all SEC comment letters and the Company's
responses thereto and such other documents as such underwriters or
seller may reasonably request in order to facilitate the disposition of
the Registrable Common Stock subject to such registration statement in
accordance with such registration statement;
(g) use its best efforts to register or qualify any
Registrable Common Stock covered by such registration statement under
the securities or blue sky laws of such jurisdictions within the United
States of America as the seller or the underwriters reasonably request,
and to take any other acts which a seller or the underwriters may
reasonably request under such securities or blue sky laws to enable the
consummation of the disposition in such jurisdictions of such
Registrable Common Stock (provided, however, that the Company may not
be required under this Agreement (i) to qualify generally to do
business as a foreign corporation in any jurisdiction in which it would
not otherwise be required to qualify, or (ii) to subject itself to
taxation in any such jurisdiction, or (iii) to consent to general
service of process in any such jurisdiction);
(h) provide a transfer agent and registrar for all Registrable
Common Stock sold under the registration and a CUSIP number for all
such Registrable Common Stock, in each case, not later than the
effective date of the registration statement;
(i) use its best efforts to cause all Registrable Common Stock
sold under the registration to be listed on each securities exchange or
to be qualified and eligible for trading on the automated quotation
system, if any, on which similar Securities issued by the Company are
then listed or traded;
(j) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the underwriters may deem necessary or desirable to expedite
or facilitate the disposition of such Registrable Common Stock
(including, without limitation, effecting a stock split or a
combination of shares);
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(k) make available for inspection by the sellers of
Registrable Common Stock, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such seller or underwriter in connection
with such registration statement, all subject to such limitations as
the Company reasonably deems appropriate in order to protect the
Company's confidential or proprietary information;
(1) use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to
this Section 6.1(l), on the date that such Registrable Securities are
delivered to the underwriters for sale in connection with a
registration pursuant to this Section 6.1(l) if such securities are
being sold through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion,
dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to
the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities; and
(m) cause its employees and personnel to use their best
efforts to support the marketing of the Registrable Common Stock
(including, without limitation, the participation in "road shows," at
the request of the underwriters or the holders of a majority of the
Registrable Common Stock to be included in such registration) to the
extent possible taking into account the Company's business needs and
the requirements of the marketing process.
6.2 Notwithstanding any contrary provision of this Section 6,
the Company shall not be required to use its best efforts to maintain the
effectiveness of any registration statement for a period in excess of 180 days
or until the sellers have sold or otherwise disposed of their Registrable Common
Stock registered under such registration statement, whichever is earlier.
6.3 It shall be a condition precedent to the inclusion of the
Registrable Common Stock of any Holder in a registration effected pursuant to
this Agreement that such Holder shall (a) furnish to the Company such
information regarding such Holder, the Registrable Common Stock of such Holder
to be registered and the intended method of disposition of such Registrable
Common Stock, and (b) execute such indemnities, underwriting agreements, lockups
(as required by Section 10) and other documents, as the Company or the managing
underwriter shall reasonably request in order to satisfy the requirements
applicable to such registration.
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SECTION 7. EXPENSES. The Company shall pay all expenses
incurred in effecting all registrations of Registrable Common Stock provided for
in Sections 2, 3 and 4 of this Agreement, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of counsel for the
sellers selected by the Holders, underwriting expenses (other than discounts and
commissions), and expenses of any audits incident to or required by any such
registration and expenses of complying with the securities or blue sky laws of
any jurisdictions pursuant to Section 6.1(g) of this Agreement, and in the case
of a registration pursuant to Section 2, reasonable fees and disbursements of a
single counsel for the sellers selected by the Holders.
SECTION 8. INDEMNIFICATION.
8.1 In the event of any registration of any of its Registrable
Common Stock under the Securities Act pursuant to this Agreement, the Company
agrees, to the extent permitted by law, to indemnify and hold harmless each
seller of Registrable Common Stock, and each officer, director, employee,
partner, member, agent and Affiliate of such seller, against any losses, claims,
damages, expenses or liabilities, joint or several, arising out of or based
upon:
(a) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement
under which such Securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or
any summary prospectus contained therein, or any Securities being
registered, or any amendment or supplement thereto, or
(b) any alleged omission to state in any such document a
material fact required to be stated therein or necessary to make the
statements therein not misleading or
(c) any alleged violation by the Company of the Securities
Act, the Exchange Act or the securities or blue sky laws of any
jurisdiction within the United States of America in which the
Registrable Common Stock is sold;
except insofar as any such loss, claim, damage or liability is (i) caused by or
contained in any information furnished in writing to the Company by such seller
expressly for use in connection with such registration, or (ii) caused by such
seller's failure to deliver a copy of the registration statement or prospectus
or any amendment or supplement thereto as required by the Securities Act or the
rules or regulations thereunder, or (iii) caused by the use of a prospectus or
preliminary prospectus or any amendment or supplement thereto after receipt of
notice from the Company that it should no longer be used.
In connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls (within
the meaning of the Securities Act) such underwriters to the same extent as
provided above with respect to the sellers of Registrable Common Stock. The
Company shall reimburse each Person indemnified pursuant to this Section 8.1 in
connection with investigating or defending any loss, claim, damage, liability or
action indemnified against. The reimbursements required by this Section 8.1
shall be made by
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periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred. The indemnities provided pursuant to
this Section 8.1 shall remain in force and effect regardless of any
investigation made by or on behalf of the indemnified party and shall survive
transfer of Registrable Common Stock by a seller.
8.2 In the event of any registration of any Registrable Common
Stock under the Securities Act pursuant to this Agreement, each Holder agrees to
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement or
prospectus in connection with the registration or any amendment or supplement
thereto.
8.3 To the extent permitted by law, and subject to the
limitation set forth in the last sentence of this Section 8.3, each Holder which
is a seller of Registrable Common Stock in a registration pursuant to this
Agreement agrees severally and not jointly to indemnify and hold harmless the
Company, its directors and officers, each other seller of Securities in such
registration, each Affiliate of each such other seller, and each Affiliate of
the Company, against:
(a) any losses, claims, damages or liabilities, joint or
several, arising out of or based upon:
(i) any alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement
under which such Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained therein, or any summary prospectus contained
therein, or any Securities being registered, or any amendment
or supplement thereto, or
(ii) any alleged omission to state in any such document a material
fact required to be stated therein or necessary to make the
statements therein not misleading,
but only insofar as any such loss, claim, damage or liability is caused
by or contained in any information furnished in writing to the Company
by the indemnifying seller expressly for use in connection with such
registration, and excluding any such loss, claim, damage or liability
which is caused by or contained in such statements, or caused by such
omissions, based upon the authority of an expert as defined in the
Securities Act (but only if the indemnifying seller had no grounds to
believe, and did not believe, that the statements made on the authority
of an expert were untrue or that there was an omission to state a
material fact); and
(b) any losses, claims, damages or liabilities, joint or
several, arising out of or based upon any failure by such seller to
deliver a copy of the registration statement or prospectus or any
amendment or supplement thereto as required by the Securities Act or
the rules or regulations thereunder.
In connection with an underwritten offering, each seller will indemnify such
underwriters, their officers and directors and each Person who controls (within
the meaning of the Securities Act)
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such underwriters to the same extent as provided above with respect to the
Company and other sellers. Each seller shall reimburse each Person indemnified
pursuant to this Section 8.3 in connection with investigating or defending any
loss, claim, damage, liability or action indemnified against. The reimbursements
required by this Section 8.3 shall be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred. The indemnities provided pursuant to this Section 8.3 shall
remain in force and effect regardless of any investigation made by or on behalf
of the indemnified party and shall survive transfer of Registrable Common Stock
by an indemnifying seller, and transfer of other Securities by any other
indemnified seller. Notwithstanding any contrary provision of this Agreement,
however, the liability under this Section 8 of each Holder which is a seller of
Registrable Common Stock shall be limited in the aggregate, with respect to the
claims of all indemnified Persons taken as a whole, not to exceed the amount of
net proceeds to the indemnifying seller from the sale of the Registrable Common
Stock sold by the indemnifying seller.
8.4 Indemnification similar to that specified in Sections 8.1
and 8.3 (with such modifications as shall be appropriate) shall be given by the
Company and each Holder of any Registrable Common Stock covered by any
registration or other qualification of Securities under any federal or state
securities law or regulation other than the Securities Act with respect to any
such registration or other qualification effected pursuant to this Agreement.
8.5 In the event the Company or any Holder receives a
complaint, claim or other notice of any loss, claim or damage, liability or
action, giving rise to claim for indemnification under this Section 8, the
Person claiming indemnification shall promptly notify the Person against whom
indemnification is sought of such complaint, notice, claim or action, and such
indemnifying Person shall have the right to investigate and defend any such
loss, claim, damage, liability or action. The Person claiming indemnification
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall not be at the expense of the Person against whom indemnification is sought
(unless the Person claiming indemnification reasonably believes that the ability
of the counsel defending such action to defend such Person's interests therein
is affected adversely and materially by a conflict of interest) and the
indemnifying Person shall not be obligated to indemnify any Person for any
settlement of any claim or action effected without the indemnifying Person's
consent, which consent will not be unreasonably withheld.
SECTION 9. MARKETING RESTRICTIONS.
9.1 If:
(a) a registration is to be made pursuant to a registration
notice under Section 2, and
(b) the offering proposed to be made by the Initiating Holder
for whom such registration is to be made is to be an underwritten
public offering and
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(c) in the opinion of the managing underwriters of such public
offering, the total amount of Securities to be included in such
offering would exceed the maximum number of shares of Common Stock
which can be marketed without otherwise materially and adversely
affecting such offering,
then the rights of the Holders to participate in such offering shall be in the
following order of priority:
First: the Initiating Holder and the Investors shall be
entitled to participate in such offering pro rata among themselves in
accordance with the number of shares of Registrable Common Stock which
each such Holder shall have requested to be registered; and then
Second: if such maximum number of shares of Common Stock
exceeds the aggregate number of shares of Registrable Common Stock that
all such Initiating Holder and Investors shall have requested be
registered, all Holders of other Securities having the right to include
such Securities in such registration shall be entitled to participate
pro rata in accordance with the number of shares proposed to be
registered by them or otherwise allocated as they may agree.
9.2 If:
(a) a registration is to be made pursuant to a registration
notice under Section 3 or a Holder requests registration under Section
4 of this Agreement, and
(b) the offering proposed to be made is to be an underwritten
public offering, and
(c) in the opinion of the managing underwriters of such public
offering, the total amount of Securities to be included in such
offering would exceed the maximum number of shares of Common Stock
which can be marketed without otherwise materially and adversely
affecting such offering,
then the rights of the Holders, of the holders of other Securities having the
right to include Common Stock in such registration and of the Company to
participate in such offering shall be in the following order of priority:
First: the Company shall be entitled to include such shares of
Common Stock as it wishes to include in the offering; provided that the
Company shall not be entitled to include Securities in an offering
effected pursuant to Section 3 hereof unless and until all Registrable
Common Stock that the Holders desire to include in such offering has
been so included pursuant to this Agreement; and then
Second: the Holders shall be entitled to participate in such
offering pro rata among themselves in accordance with the number of
shares of Registrable Common Stock which each such Holder shall have
requested to be registered; and then
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13
Third: if such maximum number of shares of Common Stock
exceeds the aggregate number of shares of Registrable Common Stock that
all such Holders shall have requested be registered, all holders of
other Securities having the right to include such Securities in such
registration shall be entitled to participate pro rata in accordance
with the number of shares proposed to be registered by them or
otherwise allocated as they may agree.
9.3 In connection with any offering involving an underwriting
of Registrable Common Stock pursuant to Section 4 of this Agreement, the Company
shall not be required to include any of the Registrable Common Stock of a Holder
in such offering unless such Holder agrees to the terms of the underwriting
agreed to between the Company and the underwriter or underwriters selected by
the Company.
SECTION 10. LOCKUP AGREEMENT. Each Holder agrees that, in
connection with the Company's initial public offering and one other underwritten
offering of the Company's Securities that is consummated within twelve (12)
months of the consummation of the Company's initial public offering, upon the
reasonable request of the Company or the request of the underwriters managing
such underwritten offering of the Company's Securities, he or it will not sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Securities of the Company (other than the Securities included in
the registration, other than Securities of the Company acquired by any Holder in
the open market after the consummation of the Company's initial public offering
and other than Securities sold by any Holder in a private sale so long as the
purchaser of such Securities agrees to be bound by the provisions of this
Section 10) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed (i) 180
days with respect to the Company's initial public offering and (ii) 90 days with
respect to the other underwritten offering) from the effective date of such
registration as the Company or the underwriters may reasonably specify, provided
that all executive officers and directors of the Company and all Holders of more
than 2% of the Securities of the Company and all holders of registration rights
enter into agreements identical in terms to that of the Holders and provided
that all Holders are treated alike with respect to any release of the lockup
contemplated under this Section 10.
SECTION 11. COMPLIANCE WITH RULE 144. With a view to making
available to the Holders of Registrable Common Stock the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit such a Holder to sell Securities of the Company to
the public without registration or pursuant to a registration on a Short Form,
the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety
(90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general
public so long as the Company remains subject to the periodic reporting
requirements under Section 13 or 15(d) of the Exchange Act;
- 13 -
14
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary
to enable the Holders to utilize a Short Form for the sale of their
Registrable Common Stock, such action to be taken as soon as
practicable after the end of the fiscal year in which the first
registration statement filed by the Company for the offering of its
securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any such Holder, so long as such Holder owns
any Registrable Common Stock, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days after
the effective date of the first registration statement filed by the
Company), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to a
Short Form (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company and (iii) such other information
as may be reasonably requested in availing any such Holder of any rule
or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
SECTION 12. ASSIGNABILITY OF REGISTRATION RIGHTS. The rights
set forth in this Agreement shall accrue to each subsequent Holder of
Registrable Common Stock who shall have executed a written consent agreeing to
be bound by the terms and conditions of this Agreement as a party to this
Agreement.
SECTION 13. DESIGNATION OF UNDERWRITER. In the case of any
registration effected pursuant to Section 2 or 3, the managing underwriters, if
any, and any other investment banking advisers to the Company shall be selected
by the Company and shall be reasonably acceptable to the Initiating Holder.
SECTION 14. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company shall not, without the
prior written consent of the Holders of at least a majority of the Outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any Securities of the Company which would allow such holder or
prospective holder (a) to include such Securities in any registration filed
under Sections 2, 3 and 4 hereof, unless, under the terms of such agreement,
such holder or prospective holder may include such Securities in any such
registration only to the extent that the inclusion of his Securities will not
reduce the amount of the Registrable Common Stock of such Holders which is
included or (b) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in Section 2.1 hereof or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 3 or
4 hereof.
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15
SECTION 15. MISCELLANEOUS.
15.1 Amendment. This Agreement may be amended to add Holders
to this Agreement, to grant rights to Holders under this Agreement or consent to
rights of other holders of Securities of the Company, superior to, on parity
with, or junior to the rights of the Holders of Outstanding Registrable
Securities, or to effect any other amendment to or waiver under this Agreement,
by a written agreement signed by all the parties hereto.
15.2 Severability. In the event that any court or any
governmental authority or agency declares all or any part of any Section of this
Agreement to be unlawful or invalid, such unlawfulness or invalidity shall not
serve to invalidate any other Section of this Agreement, and in the event that
only a portion of any Section is so declared to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate the balance of such
Section.
15.3 Successors and Assigns. All representations, warranties,
covenants and agreements of the parties contained in this Agreement or made in
writing in connection herewith, shall, except as otherwise provided herein, be
binding upon and inure to the benefit of their respective successors and
assigns. In addition, and whether or not any express assignment has been made,
the provisions of this Agreement which are for the benefit of the Holders or
other Holders of Securities are also for the benefit of, and enforceable by, any
subsequent Holders of Securities, except any subsequent Holder who acquires any
such security after such Security has been sold to the public pursuant to an
effective registration statement under the Securities Act or in a sale under
Rule 144.
15.4 Notices. All communications in connection with this
Agreement shall be in writing and shall be deemed properly given if hand
delivered or sent by telecopier (provided that such communication is confirmed
by same-day deposit in the United States mail) or overnight courier with
adequate evidence of delivery or sent by registered or certified mail, return
receipt requested, and, if to a Holder, addressed to such Holder's address as
shown on the signature page or other such address or persons as such Holder may
designate from time to time, and if to the Company, at its offices at:
Intelligent Information Incorporated
181 Harbor Drive
Third Floor
Stamford, CT 06902
Attention: Stephen G. Maloney
President and Chief Executive Officer
- 15 -
16
with a copy to:
Piper Marbury Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, NY 10020
Attention: Michael Hirschberg, Esq.
or such other addresses or Persons as the recipient shall have designated to the
sender by a written notice given in accordance with this Section. Any notice
called for hereunder shall be deemed given when received.
15.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to principles of conflicts of law).
15.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall together constitute one and the same Agreement. A written consent executed
pursuant to Section 12 of this Agreement shall be deemed to be part of, and
constitute a counterpart of, this Agreement.
15.7 Headings. The headings used herein are solely for the
convenience of the parties and shall not control or affect the meaning or
construction of any provisions hereof.
15.8 Entire Agreement. This Agreement and the other documents
and agreements executed by the parties hereto on this date or referred to herein
together constitute the entire agreement and understanding of the parties hereto
in respect of the subject matter referred to herein and therein, and there are
no restrictions, promises, representations, warranties, covenants, or
undertakings with respect to the subject matter hereof, other than those
expressly set forth or referred to herein or therein. This Agreement supersedes
all prior agreements and understandings between the parties hereto with respect
to the subject matter hereof, including without limitation the Prior Agreement.
15.9 Arbitration. Any dispute arising in connection with this
Agreement shall be submitted to binding arbitration in accordance with Section
9.10 of that certain Stock Purchase Agreement of even date herewith by and
between the Company and the Series F Purchasers.
15.10 Construction and Representation. The parties understand
and acknowledge that they have each been represented by (or have had the
opportunity to be represented by) counsel in connection with the preparation,
execution and delivery of this Agreement. This Agreement shall not be construed
against any party for having drafted it.
- 16 -
17
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended
and Restated Registration Rights Agreement to be executed on the day first above
written.
INTELLIGENT INFORMATION INCORPORATED
By : /s/ Stephen G. Maloney
____________________________________
Stephen G. Maloney
President and Chief Executive Officer
BG MEDIA INVESTORS L.P.
By: BG Media Investors LLC,
its General Partner
By: /s/ J. William Grimes
_______________________________________
J. William Grimes
Member
APEX INVESTMENT FUND III, L.P.
By: APEX MANAGEMENT III, LLC,
its General Partner
By: STELLAR INVESTMENT CO., Member
By: /s/ James A. Johnson
___________________________________
James A. Johnson
President
APEX STRATEGIC PARTNERS, LLC
By: APEX MANAGEMENT III, LLC, Member
By: STELLAR INVESTMENT CO., Member
By: /s/ James A. Johnson
__________________________________
James A. Johnson
President
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18
KEYSTONE VENTURE IV, L.P.
By: Keystone Venture IV Management
Company, L.P., its
General Partner
By: Keystone IV MCGP, Inc.,
its General Partner
By: /s/ Kerry J. Dale
______________________________
Kerry J. Dale
Vice President
/s/ Robert M. Unnold
______________________________
ROBERT M. UNNOLD
/s/ Stephan G. Maloney
______________________________
STEPHEN G. MALONEY
/s/ Donald F. Christino
______________________________
DONALD F. CHRISTINO
/s/ W. Peter Daniels
______________________________
W. PETER DANIELS
- 18 -
19
INTELLIGENT INVESTMENT PARTNERS, INC.
By: /s/ [illegible]
-----------------------------------
Name:
Title:
Address:
City, State:
Phone:
Fax:
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20
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Brian Graff
-------------------------------------
Brian Graff
Vice President
120 Long Ridge Road
Stamford, CT 06927
Phone: 203-357-3982
Fax: 203-961-2088
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21
NBC INTERACTIVE MEDIA, INC.
By: /s/ Margaret T. Murphy
-----------------------
Margaret T. Murphy
Vice President
30 Rockefeller Plaza
New York, NY 10020
Phone: 212-664-6163
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22
SPINNAKER CROSSOVER INSTITUTIONAL FUND, L.P.
By: /s/ Eric Moore
---------------
Name: Eric Moore
Title: Controller
Address: 1875 S. Grant St. Ste 600
San Mateo, CA 94402
Phone: (650) 287-2200
Fax: (605) 522-8497
SPINNAKER CROSSOVER FUND, L.P.
By: /s/ Eric Moore
---------------
Name: Eric Moore
Title: Controller
Address: 1875 S. Grant St. Ste 600
San Mateo, CA 94402
Phone: (650) 287-2200
Fax: (605) 522-8497
SPINNAKER CLIPPER FUND, L.P.
By: /s/ Eric Moore
---------------
Name: Eric Moore
Title: Controller
Address: 1875 S. Grant St. Ste 600
San Mateo, CA 94402
Phone: (650) 287-2200
Fax: (605) 522-8497
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23
KEYSTONE VENTURE V, L.P.
By: Keystone V Partners, L.P.,
Its General Partner
By: Keystone Management Co., Inc.,
the General Partner
of Keystone V Partners, L.P.
By: /s/ Kerry J. Dale
-------------------
Kerry J. Dale, Managing Director
- 23 -
24
SONY CORPORATION OF AMERICA
By: /s/ Marinus N. Henny
-----------------------
Name: Marinus N. Henny
Title: CFO
SONY MUSIC, A GROUP OF SONY MUSIC
ENTERTAINMENT, INC.
By: /s/ Ron Wilcox
---------------------------
Name: Ron Wilcox
Title: Senior Vice President
Business Affairs and Administration
- 24 -
25
SUSQUEHANNA PARTNERS, GP
By: /s/ Joel Greenberg
-------------------------
Joel Greenberg
Managing Director
401 City Line Ave., Suite 220
Bala Cynwyd, PA 19004-1122
Phone: 610-617-2614
Fax: 610-617-2908
with copies to:
Michael J. Howe
Associate Director
Susquehanna Financial Group
401 City Line Ave., Suite 220
Bala Cynwyd, PA 19004-1122
Phone: 610-617-2702
Fax: 610-617-2707
and
Michael L. Spolan, Esq.
General Counsel and Secretary
Susquehanna Financial Group
425 California Street, Suite 1100
San Francisco, CA 94104
Phone: 415-403-6500
Fax: 415-403-6525
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CLEARNET COMMUNICATIONS, INC.
By: /s/ John H. Phillips
-------------------------------------------
John H. Phillips
Executive Vice President, Carrier
Relations & General Counsel
200 Consilium, Suite 1600
Scarborough, Ont. M1H 3J3
Phone: 416-279-3009
Fax: 416-279-2995
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BT INVESTMENT PARTNERS, INC.
By: /s/ Kristine Cicardo
-------------------------------------------
Kristine Cicardo
Vice President
130 Liberty Street
New York, NY 10006
Phone: 212-250-2500
Fax: 212-669-1530
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CONNECTICUT DEVELOPMENT AUTHORITY
By: /s/ Donald G. Reed
------------------------------------
Donald G. Reed
Senior Vice President and
Managing Director
999 West Street
Rocky Hill, CT 06067
Phone: 860-258-7812
Fax: 860-257-7582
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