EXHIBIT 4.2
FOGDOG, INC.
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THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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September 24, 1999
TABLE OF CONTENTS
Page
1. Registration Rights......................................................................................1
1.1 Definitions.....................................................................................1
1.2 Requests for Registration.......................................................................2
1.3 Company Registration............................................................................5
1.4 Obligations of the Company......................................................................6
1.5 Furnish Information.............................................................................7
1.6 Expenses of Demand Registration.................................................................8
1.7 Intentionally Omitted...........................................................................8
1.8 Expenses of Company Registration................................................................8
1.9 Underwriting Requirements.......................................................................8
1.10 Delay of Registration...........................................................................9
1.11 Indemnification.................................................................................9
1.12 Reports Under the 1934 Act.....................................................................11
1.13 Form S-3 Registration..........................................................................11
1.14 Assignment of Registration Rights..............................................................12
1.15 Limitations on Subsequent Registration Rights..................................................13
1.16 "Market Stand-Off"Agreement....................................................................13
1.17 Termination of Registration Rights.............................................................14
2. Miscellaneous...........................................................................................14
2.1 Successors and Assigns.........................................................................14
2.2 Prior Agreement................................................................................14
2.3 Governing Law..................................................................................14
2.4 Counterparts...................................................................................14
2.5 Titles and Subtitles...........................................................................15
2.6 Notices........................................................................................15
2.7 Expenses.......................................................................................15
2.8 Amendments and Waivers.........................................................................15
2.9 Severability...................................................................................15
2.10 Aggregation of Stock...........................................................................15
2.11 Entire Agreement...............................................................................15
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THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made as of
the 24th day of September, 1999, by and among Fogdog, Inc., a California
corporation (the "Company"), the parties listed on the signature page hereto
under the caption "Investors" (the "Investors"), the parties listed on the
signature page hereto under the caption "Existing Investors" (the "Existing
Investors") and the parties listed on the signature page hereto under the
caption "Founders" (the "Founders").
RECITALS
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WHEREAS, the Existing Investors and the Founders hold shares of the
Company's Common Stock (the "Common Stock"), Series A Preferred Stock (the
"Series A Preferred Stock"), Series B Preferred Stock (the "Series B Preferred
Stock"), Series C Preferred Stock (the "Series C Preferred Stock") and a Warrant
to Purchase Series C Preferred Stock and possess certain rights pursuant to an
Amended and Restated Registration Rights Agreement dated as of April 16, 1999,
as amended, by and among the Company, the Existing Investors and Founders (the
"Prior Agreement"); and
WHEREAS, the Existing Investors and Founders desire to terminate the Prior
Agreement in its entirety and to accept the rights created pursuant hereto in
lieu of the rights granted to them under the Prior Agreement; and
WHEREAS, the Investors are parties to the Series D Preferred Stock Purchase
Agreement dated as of even date herewith among the Company and the Investors
(the "Purchase Agreement"), and the Company's and such Investors' obligations
under the Purchase Agreement are conditioned upon the execution of this
Agreement by such Investors, the Existing Investors, the Founders and the
Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Existing Investors who are parties to the Prior Agreement
hereby agree that the Prior Agreement shall be superseded and replaced in its
entirety by this Agreement, and the parties hereto hereby further agree as
follows:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted
by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the
SEC.
(c) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.14 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
(e) The term "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) Common Stock issuable or
issued upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock, (ii) Common
Stock issued to the Existing Investors as of the date hereof, (iii) Common
Stock issued to holders of warrants to purchase shares of Series A
Preferred Stock and the Common Stock issuable upon exercise thereof in
existence on the date hereof, (iv) shares of Common Stock issuable upon the
conversion of the Series C Preferred Stock issuable upon the exercise of a
warrant or warrants, (v) Common Stock issued to the Founders and Timothy P.
Harrington (for purposes only of Sections 1.3, 1.8, 1.9, and 1.11 of this
Agreement) and (vi) any Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the shares referenced in (i) through (v)
above, excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which such person's rights under this Section
1 are not assigned.
(g) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding
which are, and the number of shares of Common Stock issuable pursuant to
then exercisable or convertible securities which are, Registrable
Securities.
(h) The term "SEC" shall mean the Securities and Exchange Commission.
1.2 Requests for Registration.
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(1) (a) If the Company shall receive, at any time after six (6) months
from the effective date of the first registration statement for a public
offering of securities of the Company with an aggregate value of not less
than $10,000,000 (other than a registration statement relating either to
the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction), a
written request from the Holders of at least sixty-six and two-thirds
percent (66-2/3%) of the Registrable Securities then outstanding, then the
Company shall:
(i) within ten (10) days of the receipt thereof, give written notice
of such request to all Holders; and
(ii) use its best efforts to effect as soon as practicable, the
registration under the Act of all Registrable Securities which the Holders
request to be
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registered, subject to the limitations of subsection 1.2(1)(b), within
sixty (60) days of the mailing of such notice by the Company in accordance
hereof.
(b) Any Registration Statement filed pursuant to this Section 1.2(1) may
include securities of the Company other than Registrable Securities. If the
Holders initiating the registration request hereunder ("Initiating
Holders") intend to distribute the Registrable Securities covered by their
request by means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to subsection 1.2(1)(a) and the Company
shall include such information in the written notice referred to in
subsection 1.2(1)(a). The underwriter will be selected by the Company and
shall be reasonably acceptable to a majority in interest of the Initiating
Holders. In such event, the right of any Holder to include such Holder's
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and
such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
the Company as provided in subsection 1.4(e)), enter into an underwriting
agreement in customary form with the underwriter or underwriters selected
for such underwriting. Notwithstanding any other provision of this Section
1.2(1), if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders thereof,
including the Initiating Holders, in proportion (as nearly as practicable)
to the amount of Registrable Securities of the Company owned by each
Holder; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless
all other securities of the Company are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section
1.2(1), a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be filed and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer taking action with respect to such
filing for a period of not more than one hundred twenty (120) days after
receipt of the request of the Initiating Holders; provided, however, that
the Company may not utilize this right more than two times.
(d) The Company shall not be obligated to effect, or to take any action
to effect, any registration pursuant to this Section 1.2(1):
(i) After the Company has effected two registrations pursuant to this
Section 1.2(1) and such registrations have been declared or ordered
effective;
(ii) During the period starting with the date thirty (30) days prior
to the Company's good faith estimate of the date of filing of, and ending
on a date
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one hundred and eighty (180) days after the effective date of a
registration subject to Section 1.3 or Section 1.2(2) hereof; provided that
the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.13 below.
(2) (a) If the Company shall receive, at any time after six (6) months
from the effective date of the first registration statement for a public
offering of securities of the Company, a written request from Nike USA,
Inc. ("Nike"), then the Company shall:
(i) within ten (10) days of the receipt thereof, give written notice
of such request to all other Holders; and
(ii) use its best efforts to effect as soon as practicable, the
registration under the Act of all Registrable Securities which the Holders
request to be registered, subject to the limitations of subsection
1.2(2)(b), within sixty (60) days of the mailing of such notice by the
Company in accordance hereof.
(b) Any Registration Statement filed pursuant to this Section 1.2(2) may
include securities of the Company other than Registrable Securities and may
include Registrable Securities held by other Holders. If Nike intends to
distribute the Registrable Securities covered by its request by means of an
underwriting, Nike shall so advise the Company as a part of its request
made pursuant to subsection 1.2(2)(a) and the Company shall include such
information in the written notice referred to in subsection 1.2(2)(a). The
underwriter will be selected by the Company and shall be reasonably
acceptable to Nike. In such event, the right of any Holder to include such
Holder's Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of
such Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Holders) to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company as provided in
subsection 1.4(e)), enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.2(2), if the
underwriter advises Nike in writing that marketing factors require a
limitation of the number of shares to be underwritten, then Nike shall so
advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated
among all Holders thereof in proportion (as nearly as practicable) to the
amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities to
be included in such underwriting shall not be reduced unless all other
securities of the Company are first entirely excluded from the underwriting
and, provided further, that no such cutback will prevent Nike from having
the minimum number of Registrable Securities (as set forth in and as
limited by the Company's warrant issued to Nike dated
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September 24, 1999 (the "Warrant")) requested to be sold in such offering
(and all other Holders shall be so subordinated).
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section
1.2(2), a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be filed and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer taking action with respect to such
filing for a period of not more than one hundred twenty (120) days after
receipt of the request of Nike; provided, however, that the Company may not
utilize this right more than two times.
(d) The Company shall not be obligated to effect, or to take any action
to effect, any registration pursuant to this Section 1.2(2):
(i) After the Company has effected three registrations pursuant to
this Section 1.2(2) and such registrations have been declared or ordered
effective;
(ii) During the period starting with the date thirty (30) days prior
to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred and eighty (180) days after the effective date of a
registration subject to Section 1.3 or Section 1.2(1) hereof; provided that
the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(iii) If Nike or the other Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.13 below; or
(iv) If Nike can sell the maximum number of Registrable Securities as
set forth in and as limited by the Warrant without an effective
registration statement pursuant to Rule 144.
(e) Nike covenants and agrees that the maximum number of the Company's
securities that Nike can sell pursuant to this Agreement shall be limited
by the express terms of the Warrant and applicable securities laws. To the
extent Nike can sell its Registrable Securities pursuant to Rule 144 or
pursuant to the Sections 1.2(1), 1.3 and/or Section 1.13 herein, the
Company's obligations pursuant to this Section 1.2(2) shall be accordingly
reduced. Nike covenants and agrees that it will waive its rights under this
Section 1.2(2) upon receipt of an opinion of counsel, in a form reasonably
acceptable to Nike, indicating that Nike could sell with the applicable
time frames set forth in the Warrant all of its Registrable Securities
under Rule 144.
1.3 Company Registration. If (but without any obligation to do so) the Company
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proposes to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any of its stock or other
securities under the Act in
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connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants in
a Company stock plan, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered or
an SEC Rule 145 transaction), the Company shall, at such time, promptly give
each Holder written notice of such registration. Upon the written request of
each Holder given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 2.6, the Company shall, subject to the
provisions of Section 1.9, use its best efforts to cause to be registered under
the Act all of the Registrable Securities that each such Holder has requested to
be registered.
1.4 Obligations of the Company. Whenever required under this Section 1 to
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effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one
hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed or in the case of a Nike demand
registration statement pursuant to Section 1.2(2) hereof, until all such
Nike Registrable Securities are sold or capable of being sold under Rule
144; provided, however, that (i) such 120-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter
of Common Stock (or other securities) of the Company; and (ii) in the case
of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that
Rule 415, or any successor rule under the Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (i) includes any
prospectus required by Section 10(a)(3) of the Act or (ii) reflects facts
or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of
information required to be included in (i) and (ii) above to be contained
in periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act
in the registration statement.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such
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other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws
of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions, unless
the Company is already subject to service in such jurisdiction and except
as may be required by the Act.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included 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 the light of the circumstances
then existing.
(g) Cause all such Registrable Securities registered pursuant hereunder
to be listed on each securities exchange on which similar securities issued
by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of
such registration.
(i) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 1, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities (only if such offering is underwritten) and (ii) a
letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
1.5 Furnish Information. It shall be a condition precedent to the obligations
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of the Company to take any action pursuant to this Section 1 with respect to the
Registrable
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Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of such Holder's Registrable Securities.
1.6 Expenses of Demand Registration. All expenses other than underwriting
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discounts and commissions and fees and expenses of counsel to the Holders
incurred in connection with registrations, filings or qualifications pursuant to
Section 1.2, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company shall be borne by the Company, provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), provided further, however, that if at the time of
such withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holders shall not be required to pay any of such expenses.
1.7 INTENTIONALLY OMITTED.
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1.8 Expenses of Company Registration. The Company shall bear and pay all
--------------------------------
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
1.3 for each Holder (which right may be assigned as provided in Section 1.14),
including (without limitation) all registration, filing, and qualification fees,
and printers and accounting fees and the reasonable fees and expenses of one
counsel to the Holders selected by them, but excluding underwriting discounts
and commissions relating to Registrable Securities.
1.9 Underwriting Requirements. In connection with any offering involving an
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underwriting of shares of the Company's capital stock, the Company shall not be
required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering under Section 1.3 exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling shareholders according to
the total amount of securities entitled to be included therein owned by each
selling shareholder or in such other proportions as shall mutually be agreed to
by such selling shareholders). For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a
8
holder of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and shareholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
shareholder," and any pro rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
1.10 Delay of Registration. No Holder shall have any right to obtain or
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seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.11 Indemnification. In the event any Registrable Securities are included in
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a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless each Holder, any
underwriter (as defined in the Act) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of the Act
or the 1934 Act, against any losses, claims, damages, or liabilities (joint
or several) to which they may become subject under the Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) 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, or (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the
1934 Act or any state securities law; and the Company will pay to each such
Holder, underwriter or controlling person, as incurred, 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 indemnity agreement contained in this subsection 1.11(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) Each selling Holder will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning
of the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter
or other Holder, against any losses, claims, damages, or liabilities (joint
or several) to which any of the foregoing persons may become subject, under
the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in
9
respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each
such Holder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.11(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that (i) the indemnity agreement
contained in this subsection 1.11(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld, and (ii) in no event shall the
obligations of indemnity of any Holder under this subsection 1.11(b) exceed
the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.11 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
1.11, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees
and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under
this Section 1.11, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 1.11.
(d) If the indemnification provided for in this Section 1.11 is held by
a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or expense
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
10
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section 1.11
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.12 Reports Under the 1934 Act. With a view to making available to the
--------------------------
Holders the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its Common
Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal
year in which the first registration statement filed by the Company for the
offering of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of
the SEC which permits the selling of any such securities without
registration or pursuant to such form.
1.13 Form S-3 Registration. In case the Company shall receive from any Holder
---------------------
or Holders holding at least twenty-five percent (25%) of the Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 the reasonably anticipated price to the public
of which would be at least $3,000,000, and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
11
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) use its best efforts to effect, as soon as practicable, such
registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of such Holder's or Holders' Registrable Securities as
are specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.13:
(1) if Form S-3 is not available for such offering by the Holders; (2) if
the Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of
less than $3,000,000; (3) if the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
registration to be effected at such time, in which event the Company shall
have the right to defer the filing of the Form S-3 registration statement
for a period of not more than ninety (90) days after receipt of the request
of the Holder or Holders under this Section 1.13; provided, however, that
the Company shall not utilize this right more than once in any six (6)
month period; (4) if the Company has already effected four registrations on
Form S-3 for the Holders pursuant to this Section 1.13; or (5) in any
particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection
with a registration requested pursuant to Section 1.13, including (without
limitation) all registration, filing, qualification, printer's and
accounting fees and the fees and disbursements of counsel for the Company,
but excluding any underwriters' discounts or commissions associated with
Registrable Securities, shall be borne by the Company. Registrations
effected pursuant to this Section 1.13 shall not be counted as demands for
registration or registrations effected pursuant to Section 1.2 or 1.3.
(d) The Company shall not be obligated to effect any registration
pursuant to this Section 1.13 if the Company delivers to the Holders
requesting registration under this Section 1.13 an opinion, in form and
substance acceptable to such Holders, of counsel satisfactory to such
Holders, that the Registrable Securities so requested to be registered may
be sold or transferred pursuant to Rule 144(k) under the Act.
1.14 Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Section 1 may be assigned by a
Holder to a transferee or assignee of such securities provided only (a) the
transfer involves Registrable Securities with an aggregate value of not less
than $500,000, or (b) the transfer is to the
12
constituent partners or members, retired partners or members, or shareholders of
a Holder, any family member or trust for the benefit of any individual holder or
any member of any Investor that is a limited liability company who agree to act
through a single representative, provided that the Company is given a written
notice at the time of or within a reasonable time after such transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided further, that the transferee or
assignee of such rights assumes the obligations of such Holder under this
Section 1.
1.15 Limitations on Subsequent Registration Rights. From and after the date of
---------------------------------------------
this Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the outstanding Registrable Securities enter into any
agreement with any holder or prospective holder of any securities of the Company
which would allow such holder or prospective holder (a) to include such
securities in any registration filed under Section 1.2 hereof, unless under the
terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of
such holder's securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the date set forth in subsection 1.2(1)(a) or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section
1.2(1).
1.16 "Market Stand-Off" Agreement. Each signatory to this Agreement hereby
----------------
agrees that, during the period of duration specified by the Company and an
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
common stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers common stock to be sold
on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company enter into similar
agreements; and
(c) such market stand-off time period shall not exceed one hundred
eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each
signatory to this Agreement (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period. Nike
covenants and agrees that the obligations in this Section 1.16 shall be in
addition to and not in lieu of its obligations under the Warrant.
13
Notwithstanding the foregoing, the obligations described in this Section
1.16 shall not apply to a registration relating solely to employee benefit plans
on Form S-l or Form S-8 or similar forms which may be promulgated in the future,
or a registration relating solely to a Commission Rule 145 transaction on Form
S-4 or similar forms which may be promulgated in the future.
1.17 Termination of Registration Rights.
----------------------------------
(a) No Holder shall be entitled to exercise any right provided for in
this Section 1 after five (5) years following the consummation of the sale
of securities pursuant to a registration statement filed by the Company
under the Act in connection with the initial firm commitment underwritten
offering of its securities to the general public.
(b) In addition, the right of any Holder to request registration or
inclusion in any registration pursuant to this Agreement shall terminate on
the closing of the first Company-initiated registered public offering of
Common Stock of the Company if all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold
under Rule 144 during any ninety (90)-day period, or on such date after the
closing of the first Company-initiated registered public offering of Common
Stock of the Company as all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold
under Rule 144 during any ninety (90)-day period.
2. Miscellaneous.
-------------
2.1 Successors and Assigns. Except as otherwise provided herein, the terms and
----------------------
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including transferees of
any shares of Registrable Securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.2 Prior Agreement. Effective upon the execution and delivery of this
---------------
Agreement by all parties thereto, the Prior Agreement and Sections 5 and 6 of
the Letter Agreement with Nike dated September 17, 1999 hereby shall be
terminated and shall be of no further force and effect and shall be superseded
and replaced in its entirety by this Agreement. The Company and Nike agree that
the terms of the Warrant are hereby incorporated by reference herein as set
forth in their entirety herein.
2.3 Governing Law. This Agreement shall be governed by and construed under the
-------------
laws of the State of California.
2.4 Counterparts. 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.
14
2.5 Titles and Subtitles. The titles and subtitles used in this Agreement are
--------------------
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
2.6 Notices. Unless otherwise provided, any notice required or permitted under
-------
this Agreement shall be given in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or upon deposit with the
United States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
2.7 Expenses. If any action at law or in equity is necessary to enforce or
--------
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.8 Amendments and Waivers. Any term of this Agreement may be amended and the
----------------------
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the Registrable
Securities then outstanding; provided, however, that any amendment or waiver
that would be detrimental to the Holders of the Series C Preferred Stock or
Series D Preferred Stock then outstanding shall require the written consent of a
majority of the Series C Preferred Stock or Series D Preferred Stock then
outstanding; and provided further, however, that any amendment or waiver that is
detrimental to a holder of the Series C Preferred Stock or Series D Preferred
Stock in a manner different than any other holder of Preferred Stock shall also
require the written consent of such holder of Series C Preferred Stock or Series
D Preferred Stock, as applicable. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of any Registrable
Securities then outstanding, each future holder of all such Registrable
Securities, and the Company.
2.9 Severability. If one or more provisions of this Agreement are held to be
------------
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
2.10 Aggregation of Stock. All shares of Registrable Securities held or
--------------------
acquired by affiliated entities or persons or entities under common management
shall be aggregated together for the purpose of determining the availability of
any rights under this Agreement.
2.11 Entire Agreement. This Agreement (including the Exhibits hereto, if any)
----------------
and the Warrant constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
15
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amended and Restated Registration Rights Agreement as of the date first written
above.
FOGDOG, INC.
By: /s/ Tim Harrington
------------------------------------
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
PURCHASERS:
HIKARI TSUSHIN, INC.
By: /s/ Masahide Saito
__________________________________
Masahide Saito, Director
AMAN VENTURES L.L.C.
By: /s/ William J. Bell
__________________________________
William J. Bell
General Partner
BOSTON MILLENNIA PARTNERS, L.P.
By: /s/ A. Dana Callow, Jr.
__________________________________
A. Dana Callow, Jr.
Managing General Partner
LYCOS VENTURES, L.P.
By: Lycos Triangle Partners, LLC, its general
partner
[signature illegible]
____________________________________
By:_________________________________
Its:________________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
LYCOS VENTURES CO-INVESTMENT FUND, L.P.
By: Lycos Triangle Partners, LLC, its general
partner
[signature illegible]
___________________________________________
By: ______________________________________
Its: _____________________________________
WORLDVIEW TECHNOLOGY PARTNERS II, L.P.
By: Worldview Capital II, L.P., its General
Partner
By: Worldview Equity I, L.L.C., its General
Partner
/s/ Michael Orsak
__________________________________________
By: Michael Orsak - Member
WORLDVIEW TECHNOLOGY INTERNATIONAL II, L.P.
By: Worldview Capital II, L.P., its General
Partner
By: Worldview Equity I, L.L.C., its General
Partner
/s/ Michael Orsak
__________________________________________
By: Michael Orsak - Member
WORLDVIEW STRATEGIC PARTNERS II, L.P.
By: Worldview Capital II, L.P., its General
Partner
By: Worldview Equity I, L.L.C., its General
Partner
/s/ Michael Orsak
__________________________________________
By: Michael Orsak - Member
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
VENROCK ASSOCIATES
By: [signature illegible]
_____________________________
Name:
Title: General Partner
VENROCK ASSOCIATES II, L.P.
By: [signature illegible]
______________________________
Name:
Title: General Partner
VERTEX TECHNOLOGY FUND (II), LTD.
[signature illegible]
__________________________________
By:_______________________________
Its:______________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
J.H. WHITNEY III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Michael Brooks
_____________________________________
Michael Brooks
Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Michael Brooks
______________________________________
Michael Brooks
Managing Member
DRAPER FISHER ASSOCIATES FUND IV, L.P.
[signature illegible]
_________________________________________
By:______________________________________
Its:_____________________________________
DRAPER FISHER PARTNERS IV, L.L.C.
[signature illegible]
_________________________________________
By:______________________________________
Its:_____________________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DLJ CAPITAL CORP.
/s/ Alexander Rosen
_________________________________________
By: Alexander Rosen
Its: Attorney In Fact
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
Its: Manager
/s/ Alexander Rosen
_________________________________________
By: Alexander Rosen
Its: Attorney In Fact
SPROUT CAPITAL VIII, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
/s/ Alexander Rosen
_________________________________________
By: Alexander Rosen
Its: Attorney In Fact
SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
/s/ Alexander Rosen
_________________________________________
By: Alexander Rosen
Its: Attorney In Fact
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
MARQUETTE VENTURE PARTNERS III, L.P.
By: MARQUETTE III, L.L.C.
Its: General Partner
/s/ Lloyd D. Ruth
_________________________________________
By: James B. Daverman or Lloyd D. Ruth
Its: Authorized Signatory
MV VENTURE PARTNERS II, SERIES 9
[signature illegible]
_________________________________________
By:______________________________________
Its:_____________________________________
ICON INTERNATIONAL, INC.
/s/ Lance Lunzberg
_________________________________________
By: Mr. Lance Lunzberg
Its: President
PEDER SMEDVIG CAPITAL VENTURE III AS
[signature illegible]
_________________________________________
By:______________________________________
(Please print)
Its:_____________________________________
WARREN T. LAZAROW
/s/ Warren T. Lazarow
_________________________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
EXISTING SHAREHOLDERS:
VENROCK ASSOCIATES
By: [signature illegible]
__________________________________
Name:
Title: General Partner
VENROCK ASSOCIATES II, L.P.
By: [signature illegible]
__________________________________
Name:
Title: General Partner
VERTEX TECHNOLOGY FUND (II), LTD.
[signature illegible]
______________________________________
By:___________________________________
Its:__________________________________
NOVUS VENTURES, L.P.
a Delaware limited partnership
By: DT Associates,
a Delaware General Partner
By: [signature illegible]
___________________________________
Its:__________________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
J.H. WHITNEY III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Michael Brooks
_____________________________________
Michael Brooks
Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Michael Brooks
______________________________________
Michael Brooks
Managing Member
DRAPER FISHER ASSOCIATES FUND IV, L.P.
[signature illegible]
_____________________________________
By:__________________________________
Its:_________________________________
DRAPER FISHER PARTNERS IV, L.L.C.
[signature illegible]
____________________________________
By:_________________________________
Its:________________________________
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BSJR, INC.
[signature illegible]
______________________________________
By:___________________________________
Its:__________________________________
SPROUT CAPITAL VIII, L.P..
[signature illegible]
______________________________________
By:___________________________________
Its:__________________________________
SPROUT VENTURE CAPITAL, L.P.
[signature illegible]
_______________________________________
By:____________________________________
Its:___________________________________
/s/ Brett M. Allsop
_______________________________________
BRETT M. ALLSOP
/s/ Robert S. Chea
_______________________________________
ROBERT S. CHEA
/s/ Andrew Y. Chen
_______________________________________
ANDREW Y. CHEN
/s/ Timothy P. Harrington
_______________________________________
TIMOTHY P. HARRINGTON
/s/ Marcy van Lossberg
_______________________________________
MARCY VAN LOSSBERG
/s/ Michael G. Allsop
_______________________________________
MICHAEL G. ALLSOP
/s/ James D. Allsop
_______________________________________
JAMES D. ALLSOP
/s/ John I. Allsop
_______________________________________
JOHN I. ALLSOP
[signature illegible]
_______________________________________
Nike USA, Inc.
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT