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Exhibit 10.04
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of September 8, 1993, by and among OneSource
Holding corporation, a Delaware corporation (the "Company"), Information
Partners Capital Fund, L.P., a Delaware limited partnership ("Information
Partners Capital Fund"), William Blair Venture Partners III Limited Partnership,
an Illinois limited partnership ("Blair"), the Persons listed on Schedule A
attached hereto (the "Information Partners Coinvestors"), Silicon Valley Bank, a
California bank ("Silicon") , and the Persons listed on Schedule B attached
hereto (the "Management Group") (Information Partners Capital Fund and
Information Partners Coinvestors are collectively referred to herein as
"Information Partners"; Information Partners, Blair, Silicon and the Management
Group are collectively referred to herein as the "Stockholders," and each as a
"Stockholder").
Information Partners, Blair and the Company are parties to a Stock
Purchase Agreement of even date herewith (the "Purchase Agreement"). Silicon and
OneSource Information Services, Inc., a wholly owned subsidiary of the Company,
are parties to certain financing agreements (the "Financing Agreements") of even
date herewith. Each of the Management Group will become a party with the Company
to a Management Stock Purchase Agreement (collectively, the "Management
Agreements") and will become a party to a Stock Option Agreement (collectively,
the "Stock Option Agreements"). In order to induce Information Partners and
Blair to enter into the Purchase Agreement, Silicon to enter into the Financing
Agreements and the Management Group to enter into the Management Agreements, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement. Unless otherwise provided in this
Agreement, capitalized terms used herein shall have the meanings set forth in
paragraph 9 hereof.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time the holders of a majority of
both the Information Partners Registrable Securities and the Blair Registrable
Securities may request registration under the Securities Act of all or part of
their Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Registrations") or, if available, on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations"). Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten days after receipt of any such request, the Company will
give written notice of such requested registration to all other holders of
Registrable Securities and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice. All
registrations requested pursuant to this paragraph 1(a) are referred to herein
as "Demand Registrations."
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(b) LONG-FORM REGISTRATIONS. The holders of a majority of the
Information Partners Registrable Securities and the holders of a majority of the
Blair Registrable Securities will be entitled to request two Long-Form
Registrations in which the Company will pay all Registration Expenses. A
registration will not count as one of the permitted Long-Form Registrations
until it has become effective (unless such Long-Form Registration has not become
effective due solely to the fault of the holders requesting such registration),
and the last of such Long-Form Registrations will not count as one of the
permitted Long-Form Registrations unless the holders of Registrable Securities
requesting such registration have been able to register and sell pursuant to a
Demand Registration(s) at least 90% of the Registrable Securities requested to
be registered by such holders; provided that in any event the Company will pay
all Registration Expenses in connection with any registration initiated as a
Long-Form Registration whether or not it has become effective. All Long-Form
Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form Registrations
provided pursuant to paragraph 1(b) , the holders of a majority of the
Information Partners Registrable Securities and the holders of a majority of the
Blair Registrable Securities will be entitled to request an unlimited number of
Short-Form Registrations in which the Company will pay all Registration
Expenses. Demand Registrations will be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has
become subject to the reporting requirements of the Securities Exchange Act, the
Company will use its best efforts to make Short-Form Registrations available for
the sale of Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold without adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. -The Company may postpone for
up to six months the filing or the effectiveness of a registration statement for
a Demand Registration if the Company and the holders of at least a majority of
the Registrable Securities agree that such Demand Registration would reasonably
be expected to have an adverse effect on any proposal or plan by the Company or
any of its Subsidiaries to engage in any acquisition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided that in
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such event, the holders of Registrable Securities initially requesting such
Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not count as one of the
permitted Demand Registrations hereunder and the Company will pay all
Registration Expenses in connection with such registration.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement, the
Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Registrable Securities.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration or a registration on Form S4 or S-8 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration") , whether or not for sale
for its own account, the Company will give prompt written notice to all holders
of Registrable Securities of its intention to effect such a registration and
will include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 15
days after the receipt of -the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the.- Company, and the managing
underwriters advise the company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering within a price range reasonably
acceptable to the company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iii) third, other securities requested to be
included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in
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such offering within a price range reasonably acceptable to the Company, the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration, pro rata
among the holders requesting such registration and the holders of such
Registrable Securities on the basis of the number of shares owned by each such
holder, and (ii) second, other securities requested to be included in such
registration.
(e) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and " if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form) , whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
3. HOLDBACK AGREEMENTS.
(a) To the extent not inconsistent with applicable law, each holder of
Registrable Securities (other than Silicon) agrees not to effect any public sale
or, distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 180-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration) , unless the underwriters managing the registered public offering
otherwise agree. Notwithstanding the foregoing, Silicon agrees to be bound by
the terms of this paragraph 3 (a) in the event that the underwriters managing
the registered public offering so request.
(b) The company agrees (i) not to effect any public sale or
distribution, of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form) , unless the. underwriters managing the
registered public offering otherwise agree, and (ii) to cause each holder of its
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted) , unless the underwriters managing the
registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof (including the registration of
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Common and Class P Common held by a holder of Registrable securities requesting
registration as to which the Company has received reasonable assurances that
only Registrable Securities will be distributed to the public) , and pursuant
thereto the Company will as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period, within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement (who shall be
reasonably acceptable to the holders of a majority of the Information Partners
Registrable Securities and a majority of the Blair Registrable Securities)
copies of all such documents proposed to be filed, which documents will be
subject to review of such counsel);
(b) prepare and file with the Securities and Exchange 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 for a period of either (i) not less than six months (subject
to extension pursuant to paragraph 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to CONSUMMATE the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
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(e) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the discovery of the happening of any event as
a result of which, the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, and, at the request of any such seller, the Company
will prepare and furnish to such seller a reasonable number of copies of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, 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, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Securities included in such registration
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statement for sale in any jurisdiction, the Company will use its reasonable best
efforts promptly to obtain the withdrawal of such order;
(1) obtain a cold comfort letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by cold comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement) ; and
(m) provide a legal opinion of the Company's outside counsel, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement) , with respect to the registration statement, each
amendment and supplement thereto, the prospectus included herein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses") , will be borne
as provided in this Agreement, except that the Company will, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration (who shall be reasonably acceptable to the holders
of a majority of the Information Partners Registrable Securities and a majority
of the Blair Registrable Securities).
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(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Securities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or
several, to which such holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) .arise, out of or are based upon
(i) any untrue or alleged untrue statement of material fact contained (A) in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or (B) in any application or other document or
communication (in this paragraph 6 collectively called an "application")
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify any securities covered by such registration statement under the "blue
sky" or securities laws thereof, or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such holder and each such
director, officer and controlling person for any legal or any other expenses
incurred by .them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein.
In connection with an underwritten offering, the company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, to which such holder or any such
director or officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims,
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damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or in any application or (ii) any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such Holder expressly for use therein,
and such holder will reimburse the Company and each such directly, officer and
controlling person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the obligation to indemnify will be
individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided f or under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any overallotment or "green shoe" option
requested by the managing underwriter(s)) and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
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agreements and other documents reasonably required under the terms of such
underwriting arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4 (e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4 (e). In
the event the Company shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. CURRENT PUBLIC INFORMATION. At all times after the Company has filed
a registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will file all reports required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
9. DEFINITIONS.
"Blair Registrable Securities" means (i) any shares of Common Stock issued
to Blair pursuant to the Purchase Agreement, (ii) any equity securities issued
or issuable directly or indirectly with respect to the securities referred to in
clause (i) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange pursuant to paragraph 5
of the Stockholders Agreement; provided, however, that in the event that
pursuant to such recapitalization or exchange equity securities are issued which
do not participate in the residual equity of the Company ("Non-Participating
Securities"), such Non-Participating Securities will not be Registrable
Securities, and (iii) any other shares of Common Stock held by Persons holding
securities described in clauses (i) and (ii) above. As to any particular shares
constituting Blair Registrable Securities, such shares will cease to be Blair
Registrable Securities when they have been (x) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, or (y) sold to the public through a broker, dealer or market
maker pursuant to Rule 144 (or by similar provision then in force) under the
Securities Act.
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"Class P Common" means the Class P Common Stock, par value $.01 per share,
of the Company.
"Common" means the Common Stock, par value $.01 per share, of the Company.
"Common Stock" means collectively Class P Common and Common.
"Information Partners Registrable Securities" means (i) any shares of
Common Stock issued to Information Partners pursuant to the Purchase Agreement,
(ii) any equity securities issued or issuable directly or indirectly with
respect to the securities referred to in clause (i) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, including a recapitalization or
exchange pursuant to paragraph 5 of the Stockholders Agreement; provided,
however, that in the event that pursuant to such recapitalization or exchange
NonParticipating Securities are issued, such Non-Participating Securities will
not be Registrable Securities, and (iii) any other shares of Common Stock held
by Persons holding securities described in Clauses (i) and (ii) above. As to any
particular shares constituting Information Partners Registrable Securities, such
shares will cease to be Information Partners Registrable Securities when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Management Registrable Securities" means (i) any shares of Common Stock
issued to the Management Group pursuant to the Management Agreements, (ii) any
shares of Common Stock issued or issuable upon exercise of the stock options
issued to the Management Group pursuant to the Stock Option Agreements, (iii)
any equity securities issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, including a recapitalization or
exchange pursuant to paragraph 5 of the Stockholders Agreement; provided,
however, that in the event that pursuant to such recapitalization or exchange
Non-Participating Securities are issued, such NonParticipating securities will
not be Registrable Securities, and (iv) any other shares of Common Stock held by
Persons holding securities described in clauses (i) , (ii) and (iii) above. As
to any particular shares constituting Management Registrable Securities, such
shares will cease to be Management Registrable Securities when they have been
(x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
"Registrable Securities" means collectively Blair Registrable Securities,
Information Partners Registrable Securities, Silicon Registrable Securities and
Management Registrable. Securities.
12
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"Silicon Registrable Securities" means (i) any shares of Common Stock
issued to Silicon upon the exercise of that certain warrant issued to Silicon
pursuant to that certain Warrant Agreement dated as of the date hereof (the
"Silicon Warrant"), (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a
recapitalization or exchange pursuant to paragraph 5 of the Stockholders
Agreement; provided, however, that in the event that pursuant to such
recapitalization or exchange Non-Participating Securities are issued, such
NonParticipating Securities will not be Registrable Securities, and (iii) any
other shares of Common Stock held by Persons holding securities described in
clauses (i) and (ii) above. As to any particular shares constituting Silicon
Registrable Securities, such shares will cease to be Silicon Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public through a broker, dealer or market maker pursuant to
Rule 144 (or by similar provision then in force) under the Securities Act.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Purchase Agreement.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable securities in this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) REMEDIES. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any
13
party hereto shall have the right to injunctive relief, in addition to all of
its other rights and remedies at law or in equity, to enforce the provisions of
this Agreement.
(d) ARBITRATION.
(i) ARBITRATION. In the event of disputes between the parties with
respect to the terms and conditions of this Agreement, such disputes shall be
resolved by and through an arbitration proceeding to be conducted under the
auspices of the American Arbitration Association (or any like organization
successor thereto) at Boston, Massachusetts. Such arbitration proceeding shall
be conducted in as expedited a manner as is then permitted by the commercial
arbitration rules (formal or informal) of the American Arbitration Association,
and the arbitrator or arbitrators in any such arbitration shall be persons who
are expert in the subject matter of the dispute. Both the foregoing agreement of
the parties to arbitrate any and all such claims, and the results,
determination, finding, judgment and/or award rendered through such Arbitration,
shall be final and binding on the parties hereto and may be specifically
enforced by legal proceedings. The parties agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may, in his or its sole discretion, ask for
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(ii) PROCEDURE. Such arbitration may be initiated by written notice from
either party to the other which shall be a compulsory and binding proceeding on
each party. The arbitration shall be conducted before a panel of arbitrators
selected in accordance with the rules of the American Arbitration Association.
The costs of said arbitrators and the arbitration shall be borne equally by the
parties hereto. Each party shall bear separately the cost of their respective
attorneys, witnesses and experts in connection with such arbitration. Time is of
the essence of this arbitration procedure, and the arbitrators shall be
instructed and required to render their decision within ten (10) days following
completion of the arbitration.
(iii) VENUE AND JURISDICTION. Any and all legal proceedings to enforce
this Agreement, (including any action to compel arbitration hereunder or to
enforce any award or judgment rendered thereby), shall be governed in accordance
with this paragraph (d) hereunder.
(e) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least two-thirds of the
Registrable Securities; provided, however, that in the event that such amendment
or waiver would adversely affect a holder or group of holders of Registrable
Securities in a manner different from any other holders of Registrable
Securities, then such amendment or waiver will require the consent of such
holder or the holders of a majority of the Registrable Securities of such group
adversely affected.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by third parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or
14
any portion thereof) as such shall be for the benefit of an enforceable by any
subsequent holder of any Registrable Securities (or of such portion thereof),
subject to the provisions respecting the minimum numbers or percentages of
shares of Registrable Securities (or of such portion thereof) required in order
to be entitled to certain rights, or take certain actions, contained herein.
(g) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(h) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
(i) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(j) GOVERNING LAW. All issues concerning this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the state of Delaware or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of Delaware.
(k) NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications will
be sent to Blair and Information Partners at the addresses indicated on the
Schedule of Purchasers attached to the Purchase Agreement, to the Management
Group at the address indicated in the Management Agreements and to the Company
at the address indicated below:
OneSource Holding Corporation
c/o Information Partners Capital Fund, L.P.
Two Copley Place
Boston, Massachusetts 02116
Attention: David Dominik
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement o the
day and year first above written.
ONESOURCE HOLDING CORPORATION
By: /s/ David Dominik
-------------------------------
Its: President
-------------------------------
WILLIAM BLAIR VENTURE PARTNERS III
LIMITED PARTNERSHIP
By: William Blair Venture Management Company
Its: General Partner
By: /s/ Gregg Newmark
-------------------------------
Its: A General Partner
SILICON VALLEY BANK
By: /s/ David B. Fischer
-------------------------------
Its: Vice President
-------------------------------
BCIP ASSOCIATES
By: /s/ David Dominik
-------------------------------
Its: General Partner
-------------------------------
BCIP TRUST ASSOCIATES, L.P.
By: /s/ David Dominik
-------------------------------
Its: General Partner
-------------------------------
16
SCHEDULE A
BCIP Associates
BCIP Trust Associates, L.P.
17
SCHEDULE B
THE MANAGEMENT GROUP
None