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EXHIBIT 10.5
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Third Amended and Restated Registration Rights Agreement is made as
of the 26th day of January, 1999 by and among CareerBuilder, Inc., a Delaware
corporation (the "Company"), investors listed on Schedule I hereto (the "Prior
Investors") and the investors listed on Schedule II hereto (the "New Investors",
and together with the Prior Investors, the "Investors").
Whereas the Company and certain of the Prior Investors are parties to the
Class C Convertible Preferred Stock Purchase Agreement dated as of January 10,
1997 (the "Class C Agreement"), pursuant to which the Company sold shares of
Class C Convertible Preferred Stock, par value $.001 per share (the "Class C
Convertible Preferred Stock") to certain of the Prior Investors and in order to
induce certain of the Prior Investors to invest funds in the Company pursuant to
the Class C Agreement, the Company and certain of the Prior Investors entered
into a Registration Rights Agreement dated as of January 10, 1997 (the "Original
Agreement") granting certain of the Prior Investors certain rights to cause the
Company to register shares of Common Stock issuable to certain of the Prior
Investors and certain other matters as set forth therein.
Whereas the Company and certain of the Prior Investors are parties to the
Class D Convertible Preferred Stock Purchase Agreement dated as of September 11,
1997 (the "Class D Agreement"), pursuant to which the Company sold shares of
Class D Convertible Preferred Stock, par value $.001 per share (the "Class D
Convertible Preferred Stock") to certain of the Prior Investors and in order to
induce certain of the Prior Investors to invest funds in the Company pursuant to
the Class D Agreement, the Company and certain of the Prior Investors agreed to
extend to certain of the Prior Investors similar rights and to amend and restate
the Original Agreement accordingly (the "Amended Agreement").
Whereas the Company and certain of the Prior Investors are parties to the
Class E Convertible Preferred Stock Purchase Agreement dated as of July 6, 1998
(the "Class E Agreement"), pursuant to which the Company sold shares of Class E
Convertible Preferred Stock, par value $.001 per share (the "Class E Convertible
Preferred Stock") to certain of the Prior Investors and in order to induce
certain of the Prior Investors to invest funds in the Company pursuant to the
Class E Agreement, the Company and certain of the Prior Investors agreed to
extend to certain of the Prior Investors similar rights and to amend and restate
the Amended Agreement accordingly (the "Second Amended Agreement")
Whereas the Company, certain of the Prior Investors and the New Investors
are parties to the Class F Convertible Preferred Stock Purchase Agreement dated
as of an even date herewith (the "Class F Agreement"), pursuant to which the
Company sold shares of Class F Convertible Preferred Stock, par value $.001 per
share (the "Class F Convertible Preferred Stock") to certain of the Prior
Investors and the New Investors and in order to induce certain of the Prior
Investors and the New Investors to invest funds in the Company pursuant to the
Class F Agreement, the Company and the Prior Investors have agreed to extend to
certain of the Prior Investors and the
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New Investors similar rights and to amend and restate the Second Amended
Agreement accordingly. Each Investor will execute a counterpart signature page
to, and become a party to, the resulting Third Amended and Restated Registration
Rights Agreement (the "Third Amended Agreement").
Whereas the Second Amended Agreement provides that it may be amended with
the written consent of (i) the Company, (ii) the holders of a majority of the
Class B Restricted Stock (as defined below), (iii) the holders of a majority of
the Class C Restricted Stock (as defined below), (iv) the holders of a majority
of the Class D Restricted Stock (as defined below), (v) the holders of a
majority of the Class E Restricted Stock (as defined below) and (vi) the holders
of at least two-thirds of the outstanding shares of Registrable Securities (as
defined below).
Intending to be legally bound, and in consideration of the mutual
agreements stated below, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Class A Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class A Convertible Preferred Stock, par value $.001 per
share (the "Class A Convertible Preferred Stock"), excluding such shares which
have been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them or (b) publicly sold pursuant to Rule 144
under the Securities Act.
"Class B Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class B Convertible Preferred Stock, par value $.001 per
share (the "Class B Convertible Preferred Stock"), excluding such shares which
have been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them or (b) publicly sold pursuant to Rule 144
under the Securities Act.
"Class C Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class C Convertible Preferred Stock, excluding such
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Class D Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class D Convertible Preferred Stock, excluding such
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Class E Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class E Convertible Preferred Stock, excluding such
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder
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and disposed of in accordance with the registration statement covering them or
(b) publicly sold pursuant to Rule 144 under the Securities Act.
"Class F Restricted Stock" shall mean the shares of Common Stock issued
upon conversion of the Class F Convertible Preferred Stock, excluding such
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.001 par value, of the
Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Individual Stockholders" shall mean John Burton, Barry Goldsmith, Mark
Gruhin, Robert McGovern, David Wetmore and James Winchester.
"Individuals' Common Stock" shall mean (a) shares of Common Stock held by
the Individual Stockholders on the date hereof and (b) shares of Common Stock
issuable upon conversion of shares of Class A Preferred Stock held by the
Individual Stockholders on the date hereof (the "Class A Preferred Shares"),
excluding such shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act.
"Preferred Shares" shall mean the shares of Class A Convertible Preferred
Stock, the shares of Class B Convertible Preferred Stock, the shares of Class C
Convertible Preferred Stock, the shares of Class D Convertible Preferred Stock,
the shares of Class E Convertible Preferred Stock and the shares of Class F
Convertible Preferred Stock.
"Preferred Stock" shall mean the Class A Convertible Preferred Stock, the
Class B Convertible Preferred Stock, the Class C Convertible Preferred Stock,
the Class D Convertible Preferred Stock, the Class E Convertible Preferred Stock
and the Class F Convertible Preferred Stock.
"Registrable Securities" shall mean the Individuals' Common Stock, the
Class A Restricted Stock, the Class B Restricted Stock, the Class C Restricted
Stock, the Class D Restricted Stock, the Class E Restricted Stock and the Class
F Restricted Stock.
"Registration Expenses" shall mean the expenses so described in Section
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"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
2. Restrictive Legend. Each certificate representing Preferred Shares
or Conversion Shares shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT
AND ALL SUCH APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel reasonably
satisfactory to the Company the securities represented thereby may be publicly
sold without registration under the Securities Act and any applicable state
securities laws.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Preferred Shares or Conversion Shares (other than under the circumstances
described in Sections 4, 5 or 6), the holder thereof shall give written notice
to the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel reasonably satisfactory to the
Company to the effect that the proposed transfer may be effected without
registration under the Securities Act and any applicable state securities laws,
whereupon the holder of such stock shall be entitled to transfer such stock in
accordance with the terms of its notice; provided, however, that no such opinion
of counsel shall be required for a transfer (i) to one or more partners of the
transferor (in the case of a transferor that is a partnership) or (ii) to an
affiliated corporation (in the case of a transferor that is a corporation). Each
certificate for Preferred Shares or Conversion Shares transferred as above
provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of that Section.
4. Required Registration. (a) At any time after the earliest of (i) six
months after any registration statement covering a public offering of securities
of the Company under the Securities Act shall have become effective (other than
a registration statement on Form S-4, Form S-8 or another form not available for
registering the Registrable Securities for sale to the public), (ii) six months
after the Company shall have become a reporting company under Sections 12 or 15
of the Exchange Act, and (iii) July 12, 1999, the holders of Class F Restricted
Stock constituting at least 40% of the total shares of Class F Restricted Stock
then outstanding, the holders of Class E Restricted Stock constituting at least
40% of the total shares of Class E Restricted Stock then
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outstanding, the holders of Class D Restricted Stock constituting at least 40%
of the total shares of Class D Restricted Stock then outstanding, the holders of
Class C Restricted Stock constituting at least 40% of the total shares of Class
C Restricted Stock then outstanding, the holders of Class B Restricted Stock
constituting at least 40% of the total shares of Class B Restricted Stock then
outstanding or the holders of Class A Restricted Stock constituting at least 40%
of the total shares of Class A Restricted Stock then outstanding may request the
Company to register under the Securities Act all or any portion of the
Registrable Securities held by such requesting holder or holders for sale in the
manner specified in such notice, provided that the shares of Registrable
Securities for which registration has been requested shall constitute the
smaller of (A) at least 20% of the total shares of any of Class B Restricted
Stock, Class C Restricted Stock, Class D Restricted Stock, Class E Restricted
Stock or Class F Restricted Stock originally issued or (B) at least 20% of the
total shares of Class A Restricted Stock then outstanding if such holder or
holders shall request the registration of less than all shares of Registrable
Securities then held by such holder or holders (or any lesser percentage if the
reasonably anticipated aggregate price to the public of such public offering
would exceed $5,000,000). Notwithstanding any provision herein to the contrary,
GEPT may initiate such a request on behalf of the holders of Class F Restricted
Stock so long as it holds at least 20% of the total shares of Class F Restricted
Stock then outstanding, provided that the Company shall be required to so
register such shares only if the reasonably anticipated aggregate price to the
public of such public offering would exceed $5,000,000. For purposes of this
Section 4 and Sections 5, 6, 13(a) and 13(d), the terms "Class B Restricted
Stock," "Class C Restricted Stock," "Class D Restricted Stock," "Class E
Restricted Stock," "Class F Restricted Stock" and "Registrable Securities" shall
be deemed to include the number of Registrable Securities which would be
issuable to a holder of Preferred Shares upon conversion of all Preferred Shares
held by such holder at such time, provided, however, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of Common Stock, and provided, further, however, that, in any underwritten
public offering contemplated by this Section 4 or Sections 5 and 6, the holders
of Preferred Shares shall be entitled to sell such Preferred Shares to the
underwriters for conversion and sale of the shares of Common Stock issued upon
conversion thereof. Notwithstanding anything to the contrary contained herein,
no request may be made under this Section 4 within 120 days after the effective
date of a registration statement filed by the Company covering a firm commitment
underwritten public offering in which the holders of Registrable Securities
shall have been entitled to join pursuant to Sections 5 or 6 and in which there
shall have been effectively registered all Registrable Securities as to which
registration shall have been requested.
(b) Following receipt of any notice under this Section 4, the Company
shall immediately notify all holders of Registrable Securities from whom notice
has not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Registrable Securities specified in such notice (and in all notices received by
the Company from other holders within 30 days after the giving of such notice by
the Company). If such method of disposition shall be an underwritten public
offering, the holders of a majority of the shares of Registrable Securities to
be sold in such offering may designate the managing underwriter of such
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed. The Company shall be obligated to register
Registrable Securities pursuant to this Section 4 for two demands only by any
holder of any class of Restricted Stock, provided, however, that such obligation
shall be deemed satisfied only when a registration statement
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covering all shares of Registrable Securities specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Registrable Securities to be sold. Except for registration
statements on Form S-4, S-8 or any successor thereto, the Company will not file
with the Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other stockholders, from the date
of receipt of a notice from requesting holders pursuant to this Section 4 until
the completion of the period of distribution of the registration contemplated
thereby.
5. Piggyback Registration. If the Company at any time proposes to
register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other security holders or both
(except with respect to registration statements on Forms S-4, S-8 or another
form not available for registering the Registrable Securities for sale to the
public), each such time it will give prompt written notice to all holders of
Registrable Securities of its intention so to do. Upon the written request of
any such holder, received by the Company within 30 days after the giving of any
such notice by the Company, to register any of its Registrable Securities, the
Company will use its best efforts to cause the Registrable Securities as to
which registration shall have been so requested to be included in the securities
to be covered by the registration statement proposed to be filed by the Company,
all to the extent requisite to permit the sale or other disposition by the
holder of such Registrable Securities so registered. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of
Registrable Securities to be included in such an underwriting may be reduced
(pro rata among the requesting holders based upon the number of shares of
Registrable Securities owned by such holders) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would
materially and adversely affect the marketing of the securities to be sold by
the Company therein, provided, however, that such number of shares of
Registrable Securities shall not be reduced if any shares are to be included in
such underwriting for the account of any person other than the Company or
requesting holders of Registrable Securities, and provided, further, however,
that in no event may less than one-third of the total number of shares of Common
Stock to be included in such underwriting be made available for shares of Class
B Restricted Stock, Class C Restricted Stock, Class D Restricted Stock, Class E
Restricted Stock and Class F Restricted Stock on a pro-rata basis.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 5 without thereby incurring
any liability to the holders of Registrable Securities.
6. Registration on Form S-3. If at any time (i) a holder or holders of
Registrable Securities requests that the Company file a registration statement
on Form S-3 or any successor thereto for a public offering of all or any portion
of the shares of Registrable Securities held by
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such requesting holder or holders, the reasonably anticipated aggregate price to
the public of which would exceed $1,000,000, and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register such
shares, then the Company shall use its best efforts to effect the prompt
registration under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, of the number of shares of Registrable Securities specified in such
notice. Whenever the Company is required by this Section 6 to use its best
efforts to effect the registration of Registrable Securities, each of the
procedures and requirements of Section 4 (including but not limited to the
requirement that the Company notify all holders of Registrable Securities from
whom notice has not been received and provide them with the opportunity to
participate in the offering) shall apply to such registration, provided,
however, that there shall be no limitation on the number of registrations on
Form S-3 which may be requested and obtained under this Section 6, and provided,
further, however, that the requirements contained in the first sentence of
Section 4(a) shall not apply to any registration on Form S-3 which may be
requested and obtained under this Section 6.
7. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Registrable Securities under the Securities Act,
the Company will, as expeditiously as possible:
a) prepare and file within 60 days thereafter with the Commission a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 4, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become and remain effective for the
period of the distribution contemplated thereby (determined as hereinafter
provided);
b) prepare and promptly file with the Commission such amendments,
post-effective amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period specified in paragraph (a) above
and to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
in accordance with the sellers' intended method of disposition set forth in such
registration statement for such period, but in no event for a period of more
than six (6) months after such registration statement becomes effective;
c) furnish to each seller of Registrable Securities and to each
underwriter such number of copies of the registration statement and any
amendments, post-effective amendments and supplements thereto and the prospectus
included therein (including each preliminary prospectus and summary prospectus)
as such persons reasonably may request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such registration
statement in accordance with the intended method of disposition set forth
therein;
d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter reasonably
shall request, provided however, that the Company shall not for any such purpose
be required to qualify generally to transact business as a foreign corporation
in any
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jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
e) use its best efforts to list the Registrable Securities covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed, if such listing is then permitted under the
rules of such exchange, or if such listing is not practicable, to secure
designation of such securities as a Nasdaq "national market system security"
within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to
secure Nasdaq authorization for such Registrable Securities, and, without
limiting the foregoing, to arrange for at least two market makers to register as
such with respect to such Registrable Securities with the NASD, and to provide a
transfer agent and registrar for such Registrable Securities not later than the
effective date of such registration statement;
f) immediately notify each seller of Registrable Securities and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event or existence of any fact of which the Company has
knowledge as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and prepare and furnish to each such seller, as promptly thereafter as
is practicable, a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that such prospectus shall not include
an untrue statement or material fact or omit to state a material fact required
to be stated therein or necessary to make the statement therein not misleading
in light of the circumstances then existing;
g) if the offering is underwritten and at the request of any seller
of Registrable Securities, use its best efforts to furnish on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters and
to such seller, stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act, (B) the registration statement, the related prospectus
and each amendment or supplement thereof comply as to form in all material
respects with the requirements of the Securities Act (except that such counsel
need not express any opinion as to financial statements contained therein), and
(C) to such other effects as reasonably may be requested by counsel for the
underwriters or by such seller or its counsel and (ii) a letter dated such date
from the independent public accountants retained by the Company, addressed to
the underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
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h) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement of the Company
(in form complying with the provisions of Rule 158 under the Securities Act)
covering the period of at least 12 months, but not more than 18 months,
beginning with the first month after the effective date of the registration
statement;
j) notify each seller of any Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus supplement or
post-effective amendment has become effective, (ii) of any request by the
Commission for amendments or supplements to such registration statement or to
amend or to supplement such prospectus or for additional information after the
effectiveness of such registration statement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose and (iv) of the
suspension of the qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any of such purposes;
k) use reasonable effort to obtain the lifting of any stop order
that might be issued suspending the effectiveness of such registration statement
at the earliest possible moment;
l) use its best efforts to (i) cause all such Registrable Securities
to be listed on each such securities exchange or automated quotation system on
which similar securities issued by the Company are then listed, and (ii) to
provide a transfer agent and registrar for such Registrable Securities not later
than the effective date of such registration statement; and
m) enter into such agreements and take such other actions as the
sellers of Registrable Securities or the underwriters reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities,
including, without limitation, preparing for, and participating in, such number
of "road shows" and all such other customary selling efforts as the underwriters
reasonably request in order to expedite or facilitate such disposition provided,
however, that the Company shall not be required in connection with this
paragraph (m) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of
distribution of Registrable Securities in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Securities in any other registration shall be deemed to extend
until the earlier of the sale of all Registrable Securities covered thereby and
120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of Registrable
Securities will furnish to the Company in writing such information with respect
to themselves and the proposed
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distribution by them as reasonably shall be necessary in order to assure
compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying with
Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., fees and expenses
associated with listing securities on an exchange or for quotation on Nasdaq,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements of one counsel for the sellers of Registrable Securities,
but excluding any Selling Expenses, are called "Registration Expenses." All
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution. (a) In the event of a registration
of any of the Registrable Securities under the Securities Act pursuant to
Sections 4, 5 or 6, the Company will indemnify and hold harmless each seller of
such Registrable Securities thereunder and the officers, directors, trustees and
controlling persons of such seller, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such
indemnified person or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Securities were
registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus or summary prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such seller, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
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In the event of a registration of any of the Registrable Securities under the
Securities Act pursuant to Sections 4, 5 or 6, each seller of such Registrable
Securities thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities to which the Company or such
officer, director, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
(including any post-effective amendment) or supplement thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus, and provided, further, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the proceeds received
by such seller from the sale of Registrable Securities covered by such
registration statement.
(b) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof jointly with any other
indemnifying party similarly notified, except in the event one of the
indemnifying parties is the Company, in which case the Company may, in its sole
discretion, assume and undertake such defense on its own, with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party
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and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party and that it is advisable that such indemnified party be
represented by separate counsel, the indemnified party shall have the right to
select a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of a
maximum of one such separate counsel for all such indemnified parties and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred.
(c) No indemnifying party, in defense of any such claim or
litigation, shall, except with the consent of such indemnified party, which
consent shall not be unreasonably withheld, consent to entry of any judgment or
enter into any settlement which does not include as a term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Securities exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Securities offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Securities offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock or Preferred Stock. If, and as often as,
there is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, at all
times after 90 days after any registration
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statement covering a public offering of securities of the Company under the
Securities Act shall have become effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Securities forthwith
upon request a written statement by the Company as to its compliance
with the reporting requirements of such Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports
and documents so filed by the Company as such holder may reasonably
request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Registrable Securities
without registration.
12. Representations and Warranties. (a) The Company represents and
warrants to the Investors as follows:
(i) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Charter or Bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(ii) This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject, as to enforcement of
remedies, to the discretion of courts in awarding equitable relief and to
applicable bankruptcy, reorganization, insolvency, moratorium and similar laws
affecting the rights of creditors generally.
(b) Each Investor represents and warrants to the Company and
the other Investors as follows:
(i) The execution, delivery and performance of this
Agreement by such Investor has been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency or government, the Charter or By-Laws (or similar organization
documents) of such Investor or any provision of any indenture, agreement or
other instrument to which it or any of its properties or assets is bound,
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of such Investor.
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(ii) This Agreement has been duly executed and delivered by such
Investor and constitutes the legal, valid and binding obligation of such
Investor, enforceable in accordance with its terms, subject, as to enforcement
of remedies, to the discretion of courts in awarding equitable relief and to
applicable bankruptcy, reorganization, insolvency, moratorium and similar laws
affecting the rights of creditors generally.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including without
limitation transferees of Registrable Securities), whether so expressed or not,
provided, however, that registration rights conferred herein on the holders of
Registrable Securities shall only inure to the benefit of a transferee of
Registrable Securities if (i) there is transferred to such transferee at least
20% of the total shares of Registrable Securities originally issued pursuant to,
or held as of the date of, the Purchase Agreement to the direct or indirect
transferor of such transferee or (ii) such transferee is a family member,
partner, shareholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by
telecopier or telex, addressed as follows:
(i) if to the Company or any other party hereto, at the address
of such party set forth in the purchase agreement by which such
party acquired Preferred Stock from the Company;
(ii) if to any subsequent holder of Preferred Shares or
Registrable Securities, to it at such address as may have been
furnished to the Company in writing by such holder; or
(iii) in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of a
holder of Registrable Securities) or to the holders of
Registrable Securities (in the case of the Company) in
accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of (i) the Company, (ii)
the holders of a majority of the Class B Restricted Stock, (iii) the
holders of a majority of the Class C Restricted Stock, (iv) the holders of
a majority of the Class D Restricted Stock, (v) the holders of a majority
of the Class E Restricted Stock, (vi) the holders of a majority of the
Class F Restricted Stock and (vii) the holders of at least two-thirds of
the outstanding shares of Registrable Securities.
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(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) The obligations of the Company to register shares of
Registrable Securities under Sections 4, 5 or 6 shall terminate on
July 12, 2011.
(g) If requested in writing by the underwriters for the
initial underwritten public offering of securities of the Company,
each holder of Registrable Securities who is a party to this
Agreement shall agree not to sell publicly any shares of Registrable
Securities or any other shares of Common Stock (other than shares of
Registrable Securities or other shares of Common Stock being
registered in such offering), without the consent of such
underwriters, for a period of not more than 180 days following the
effective date of the registration statement relating to such
offering; provided, however, that all persons entitled to
registration rights with respect to shares of Common Stock who are
not parties to this Agreement, all other persons selling shares of
Common Stock in such offering, all persons holding in excess of 1%
of the capital stock of the Company on a fully diluted basis and all
executive officers and directors of the Company shall also have
agreed not to sell publicly their Common Stock under the
circumstances and pursuant to the terms set forth in this Section
13(g).
(h) Notwithstanding the provisions of Section 7(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be
suspended for a period not to exceed 90 days in any 24 month period
if there exists at the time material nonpublic information relating
to the Company which, in the reasonable opinion of the Company,
should not be disclosed.
(i) The Company shall not grant to any third party any
registration rights more favorable than or inconsistent with any of
those contained herein, so long as any of the registration rights
under this Agreement remains in effect.
(j) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not
in any manner affect or render illegal, invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be
carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
(k) The parties to this Agreement that are also parties to the
Second Amended Agreement agree that this Third Amended Agreement
supersedes the Second Amended Agreement and that the Second Amended
Agreement is terminated in its entirety upon execution of this
Agreement.
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between the Company and you.
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Very truly yours,
CAREERBUILDER, INC.
By: /s/ ROBERT MCGOVERN
-----------------------------
Name: Robert McGovern
Title: CEO
AGREED TO AND ACCEPTED as of the date first written above:
PRIOR INVESTORS
21ST CENTURY INTERNET VENTURE
PARTNERS, LLC
By: 21st CENTURY INTERNET FUND
By: /s/ J. NEIL WEINTRAUT
-----------------------
Name: J. Neil Weintraut
Title:
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NEW ENTERPRISE ASSOCIATES VI,
LIMITED PARTNERSHIP
By: NEA PARTNERS VI, LIMITED
PARTNERSHIP
By: /s/ PETER BARRIS
--------------------------
Name:
Title:
THOMSON U.S. INC.
By: /s/ JAMES R. SCHURR
---------------------------------
Name: James R. Schurr
Title: Vice President
ADP, INC.
By: /s/ GARY C. BUTLER
---------------------
Name:
Title:
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FBR TECHNOLOGY VENTURE
PARTNERS, L.P.
By: /s/ GENE RIECHERS
-------------------------
Name: Gene Riechers
Title: Managing Director
FBR ECOMM, L.P.
By: /s/ GENE RIECHERS
-------------------------
Name: Gene Riechers
Title: Managing Director
/s/ JOHN BURTON
------------------------------
JOHN BURTON, INDIVIDUALLY
/s/ BARRY GOLDSMITH
------------------------------
BARRY GOLDSMITH, INDIVIDUALLY
/s/ MARK GRUHIN
------------------------------
MARK GRUHIN, INDIVIDUALLY
/s/ ROBERT MCGOVERN
------------------------------
ROBERT MCGOVERN, INDIVIDUALLY
/s/ DAVID WETMORE
------------------------------
DAVID WETMORE, INDIVIDUALLY
/s/ JAMES WINCHESTER
------------------------------
JAMES WINCHESTER, INDIVIDUALLY
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NEW INVESTORS
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ TONY J. PANTUSO
----------------------------------
Name: Tony J. Pantuso
Title: Dept Ops Manager
GENERAL ELECTRIC PENSION TRUST
By: /s/ DONALD W. TOREY
----------------------------------
Name: Donald W. Torey
Title: Executive Vice President
/s/ SUZANNE HOOPER KING
-----------------------------------------
SUZANNE HOOPER KING, INDIVIDUALLY
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Schedule I
Prior Investors
FBR Technology Venture Partners, L.P.
FBR eComm, L.P.
21st Century Internet Venture Partners, LLC
New Enterprise Associates VI, Limited Partnership
NEA Presidents' Fund, L.P.
John Burton
Barry Goldsmith
Mark Gruhin
Robert McGovern
David Wetmore
James Winchester
Thomson U.S. Inc.
ADP, Inc.
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Schedule II
New Investors
GE Capital Equity Investments, Inc.
General Electric Pension Trust
Susanne Hooper King
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