Registration Rights Agreement - Bolt Inc., Sandler Capital Patners IV LP, Sandler Capital partners IV FTE LP, Bechtel Enterprises Holdings Inc., Highland Capital Partners IV LP, Highland Entrepreneurs Fund IV LP, Oak Investment Partners VIII LP, Oak VIII Affiliates Fund LP, Moore Global Investments Ltd. and Remington Investments Strategies LP
SECOND
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
BOLT, INC.,
SANDLER CAPITAL PARTNERS IV, L.P.,
SANDLER CAPITAL PARTNERS IV FTE, L.P.,
BECHTEL ENTERPRISES HOLDINGS, INC.,
HIGHLAND CAPITAL PARTNERS IV LIMITED PARTNERSHIP,
HIGHLAND ENTREPRENEURS FUND IV LIMITED PARTNERSHIP
OAK INVESTMENT PARTNERS VIII, LIMITED PARTNERSHIP
OAK VIII AFFILIATES FUND, LIMITED PARTNERSHIP
MOORE GLOBAL INVESTMENTS, LTD.
REMINGTON INVESTMENTS STRATEGIES, L.P.
AND
THE OTHER INVESTORS
Dated as of November 17, 1999
<PAGE> 2
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of November 17, 1999, by and among BOLT, INC.,
a Delaware corporation (the "Company"), SANDLER CAPITAL PARTNERS IV, L.P.; a
Delaware limited partnership ("SCP IV"), SANDLER CAPITAL PARTNERS IV FTE, L.P.,
a Delaware limited partnership ("SCP IV FTE" and, collectively with SCP IV,
"Sandler"), BECHTEL ENTERPRISES HOLDINGS, INC. a Delaware corporation (formerly
known as BECHTEL ENTERPRISES, INC.) ("Bechtel"), HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP, a Delaware limited partnership ("HCP IV") HIGHLAND
ENTREPRENEURS FUND IV LIMITED PARTNERSHIP ("HEF IV" and, collectively with HCP
IV, "Highland"), OAK INVESTMENT PARTNERS VIII, LIMITED PARTNERSHIP, a Delaware
limited partnership ("Oak VIII"), OAK VIII AFFILIATES FUND, LIMITED
PARTNERSHIP, a Delaware limited partnership ("Oak Affiliates" and, collectively
with Oak VIII, "Oak"), MOORE GLOBAL INVESTMENTS, LTD., a Bahamian limited
company ("Moore"), REMINGTON INVESTMENTS STRATEGIES, L.P., a Delaware limited
partnership ("Remington", and together with Moore, the "Moore Parties") and the
parties listed on Schedules 1 and 2 hereto (the "Other Investors").
WITNESSETH:
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of the date hereof with
the Moore Parties and the parties listed on Schedule 1 thereto (the "Series C
Investors"), pursuant to which the Company has agreed to issue and sell to the
Series C Investors shares of the Company's Series C Convertible Preferred
Stock, par value $0.001 per share, (the "Series C Stock");
WHEREAS, the Company has agreed to grant certain registration rights
with respect to shares of the Company's Common Stock, par value $0.001 per
share (the "Common Stock") issuable upon conversion of the Series C Stock
issued to the Series C Investors pursuant to the Stock Purchase Agreement;
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement (the "Oak Stock Purchase Agreement"), dated as of March 1, 1999, with
Oak pursuant to which the Company issued and sold to Oak shares of the
Company's Series B-2 Convertible Preferred Stock, par value $0.001 per share
(the "Series B-2 Stock");
WHEREAS, the Company granted certain registration rights with respect
to the shares of the Company's Common Stock, par value $0.001 per share, (the
"Common Stock") issuable upon conversion of the Series B-2 Stock issued to Oak
pursuant to the Oak Stock Purchase Agreement;
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement (the "Sandler Stock Purchase Agreement"), dated as of February 23,
1999, with Sandler, Highland
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and the parties listed on Schedule 2 thereto (the "Sandler Investors") pursuant
to which the Company issued and sold to Sandler, Highland and the Sandler
Investors shares of the Company's Series B-1 Convertible Preferred Stock, par
value $0.001 per share (the "Series B-1 Stock");
WHEREAS, the Company has granted certain registration rights with
respect to the shares of the Company's Common Stock issuable upon conversion of
the Series B-1 Stock issued to Sandler, Highland and the Sandler Investors
pursuant to the Sandler Stock Purchase Agreement;
WHEREAS, the Company has entered into those certain Bolt Media, Inc.
Series B-1 Convertible Preferred Stock Subscription Agreements (the
"Subscription Agreements"), dated as of February 23, 1999, with the Other
Investors which are not the Sandler Investors (the "Providence Investors")
pursuant to which the Company issued and sold to the Providence Investors
shares of the Series B-1 Stock;
WHEREAS, the Company has granted certain registration rights with
respect to the Common Stock issuable upon conversion of the Series B-1 Stock
issued to the Providence Investors;
WHEREAS, as of the date hereof, Bechtel owns (i) 600,000 shares of the
Company's Series A-1 Convertible Preferred Stock, par value $0.001 per share,
and (ii) 125,000 shares of the Company's Series A-2 Convertible Preferred
Stock, par value $0.001 per share (collectively, the "Series A Stock");
WHEREAS, the Company and Bechtel have terminated, among other things,
the registration rights granted to Bechtel pursuant to Section 6 of that
certain Series A Convertible Preferred Stock Purchase Agreement dated as of
January 10, 1997, between the Company and Bechtel;
WHEREAS, the Company has granted Bechtel certain registration rights
with respect to the shares of Common Stock issuable upon conversion of the
Series A Stock as contemplated herein;
WHEREAS, pursuant to the Registration Rights Agreement, dated February
23, 1999 (the "Original Registration Rights Agreement"), by and among the
Company and the stockholders named therein, which included the Sandler
Investors and Bechtel, the Company granted certain registration rights to
stockholders;
WHEREAS, the Original Registration Rights Agreement was amended and
restated as of March 1, 1999 to grant Oak the same registration rights granted
to the parties to the Original Registration Rights Agreement (the "Amended and
Restated Registration Rights Agreement");
WHEREAS, the Company issued a Preferred Stock Purchase Warrant to
Lighthouse Capital Partners III, L.P. ("Lighthouse") on August 23, 1999, which
warrant was amended as of November 17, 1999 (the "Warrant") to provide, among
other things, for the purchase of shares of Series B-3 Convertible Preferred
Stock, par value $.001 per share (the "Series B-3 Stock" and
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collectively with the Series B-1 Stock and Series B-2 Stock, the "Series B
Stock") in lieu of Series B-2 Stock;
WHEREAS, the Company and the parties to the Amended and Restated
Registration Rights Agreement agree to further amend and restate in its
entirely the Amended and Restated Registration Rights Agreement in order to
grant the Series C Investors the same registration rights granted to the other
parties to the Amended and Restated Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and in order to further amend and restate in its entirely the Amended and
Restated Registration Rights Agreement, the parties, intending to be legally
bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following
respective meanings:
1.1 "Commission" shall mean the Securities and Exchange
Commission, or any other successor federal agency at the time administering the
Securities Act.
1.2 "Common Stock" shall mean the Company's common stock, par
value $0.001 per share.
1.3 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.4 "Holders" shall mean and include each of Bechtel, Sandler,
Highland, the Other Investors, Oak, the Series C Investors and any person or
entity that shall have executed this Agreement and whose name appears on the
Schedule of Registration Rights Holders attached hereto as Exhibit A or who
shall, pursuant to Section 11.3 hereof, become a party hereto, and any
permitted transferee under Article 9 hereof which holds Registrable Securities.
1.5 "Initiating Holders" shall mean any Holder or Holders other
than the Series C Investors who in the aggregate own not less than forty
percent (40%) of the Registrable Securities; provided, however, that after the
date on which the Company has closed its Initial Public Offering, "Initiating
Holders" shall mean any Holders who in the aggregate own not less than twenty
percent (20%) of the Registrable Securities.
1.6 "Initial Public Offering" shall mean the closing of the first
firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act, covering the offer and sale of
Common Stock to the public that raises gross proceeds for the Company of at
least $20,000,000 and at an aggregate offering price to the public that
reflects a value of the Company, on a Fully-Diluted Basis, of (i) at least
$25,000,000 if such offering is commenced on or before the first anniversary
(on a pre-money equity valuation) of the date
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March 1, 1999 or (ii) at least $31,250,000 (on a pre-money equity valuation) if
such offering is commenced after the first anniversary of March 1, 1999.
1.7 Reserved.
1.8 The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing with the Commission a
registration statement in compliance with the Securities Act, and the
declaration or ordering by the Commission of the effectiveness of such
registration statement.
1.9 "Registrable Securities" means any and all shares of Common
Stock: (i) issued or issuable upon conversion of the Series A Stock, the Series
B Stock and the Series C Stock; (ii) issued or issuable with respect to the
Series A Stock, the Series B Stock or the Series C Stock upon any stock split,
stock dividend, combination, recapitalization, reclassification, merger,
consolidation or other similar event; and (iii) otherwise held or acquired by
any of Bechtel, Sandler, Highland, Oak, or the Series C Investors or the Other
Investors excluding in all cases, however, Registrable Securities sold by a
Holder to the public or pursuant to Rule 144 promulgated under the Securities
Act (or any similar or analogous rule promulgated under the Securities Act).
For purposes of this Agreement, a person will be deemed to be a Holder of
Registrable Securities whenever such person has the right to acquire directly
or indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
1.10 "Registration Expenses" shall mean all expenses incurred by
the Company in complying with Articles 2 and 3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
messenger and delivery expenses, escrow fees, fees and disbursements of legal
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and persons retained by the
Company (but excluding the compensation of regular employees of the Company,
which shall be paid in any event by the Company), fees and disbursements of one
legal counsel for the selling Holders, blue sky fees and expenses, and the
expenses of any special audits incident to or required by any such registration
by the Company.
1.11 "S-3 Registration Expenses" shall mean all expenses incurred
by the Company in complying with Article 4 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
messenger and delivery expenses, escrow fees, fees and disbursements of legal
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and persons retained by the
Company (but excluding the compensation of regular employees of the Company,
which shall be paid in any event by the Company), fees and disbursements of one
legal counsel for the selling Holders, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration.
1.12 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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1.13 "Selling Expenses" shall mean all underwriting fees,
discounts, selling commissions and stock transfer taxes applicable to the
Registrable Securities registered by the Holders.
1.14 "Series C Investors" shall mean the purchasers of Series C
Convertible Preferred Stock, par value $0.001 per share, of the Company (the
"Series C Stock") set forth on Schedule 2 attached hereto.
1.15 "Series C Qualified Public Offering" means the closing of a
firm commitment underwritten public offering pursuant to an effective
registration under the Securities Act covering the offer and sale of Common
Stock to the public that raises proceeds to the Company of at least twenty-five
million dollar ($25,000,000), after underwriters discounts and expenses, at an
offering price of at least seventeen dollars and ninety-four cents, $17.94,
subject to adjustment for dividends, distributions, stock splits, combinations,
recapitalizations, reclassifications, mergers or consolidations and similar
other types of events.
ARTICLE 2
REQUESTED REGISTRATION
2.1 Request by Holders for Registration. Beginning on the earlier
of (i) the date which is 180 days after the effective date of an Initial Public
Offering or (ii) March 1, 2001, Initiating Holders may request registration in
accordance with this Article 2; provided that, Initiating Holders may not
request registration pursuant to this Article 2 prior to the effective date of
an Initial Public Offering unless such requested registration is for a public
offering of shares reasonably anticipated to have an aggregate offering price
to the public of at least $5,000,000. In the event the Company shall receive
from any one or more of the Initiating Holders a written request that the
Company effect any such registration, qualification or compliance with respect
to Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(b) use its best efforts to effect such registration,
qualification or compliance as soon as practicable (including, without
limitation, undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act, and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder
or Holders joining in such request as are specified in a written request
received by the Company within 15 days after the receipt of the written notice
from the Company described in Section 2.1(a); provided, however, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.1:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification
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<PAGE> 7
or compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
(ii) within one hundred and eighty (180) days immediately
following the effective date of any registration statement pertaining
to a firm commitment underwritten offering of securities of the
Company for its own account;
(iii) after the Company has effected three (3) such
requested registrations pursuant to this Section 2.1 (not including
registrations on Form S-3), each such registration has been declared
or ordered effective, and the Registrable Securities offered pursuant
to each such registration have been sold, or if the Company has
effected any requested registration (other than a registration for the
Company's Initial Public Offering) pursuant to this Agreement during
the previous six-month period;
(iv) if the Company then meets the eligibility
requirements applicable to the use of Form S-3 in connection with such
registration and is able to effect such requested registration
pursuant to Article 4 hereof; or
(v) if the Company, within ten (10) days of the receipt
of the request of the Holder or Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the
Commission within forty-five (45) days of receipt of such request
(other than with respect to a registration statement relating to a
Rule 145 transaction or an offering solely to employees).
(c) Subject to the foregoing clauses (i) through (v), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Initiating Holders and provide notice to the other Holders as required
by Section 2.1(a); provided, however, that if the Company shall furnish to such
Holders a certificate signed by the Chairman or Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be detrimental to the Company and its stockholders for
such registration statement to be filed, the Company shall have the right to
defer such filing for a period of not more than 180 days after receipt of the
request of the Initiating Holders; provided, further, that the Company shall
not be permitted to exercise such deferral right under this Section 2.1(c) or
Section 4.1(c) hereof more than once in any 365-day period.
2.2 Request by Series C Investors for Registration. Beginning on
the earlier of (i) the date which is 180 days after the effective date of
Series C Qualified Public Offering or (ii) the date which is after the second
anniversary of the date of this Agreement, upon the request of one or more of
the Series C Investors who own in the aggregate not less than forty percent of
the Series C Stock (the "Series C Initiating Holders"), such Series C
Initiating Holders may request registration in accordance with this Article 2;
provided that, the Series C Initiating Holders may not request registration
pursuant to this Article 2 prior to the effective date of Series C Qualified
Public Offering unless such requested registration is for a public offering of
shares reasonably anticipated to have an aggregate offering price to the public
of at least $5,000,000. In the event the Company shall receive from the Series
C Initiating Holders a written request that the
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Company effect any such registration, qualification or compliance with respect
to Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(b) use its best efforts to effect such registration,
qualification or compliance as soon as practicable (including, without
limitation, undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act, and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder
or Holders joining in such request as are specified in a written request
received by the Company within 15 days after the receipt of the written notice
from the Company described in Section 2.2(a); provided, however, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.2:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act;
(ii) within one hundred and eighty (180) days immediately
following the effective date of any registration statement pertaining
to a firm commitment underwritten offering of securities of the
Company for its own account;
(iii) after the Company has effected one (1) such requested
registration pursuant to this Section 2.2 (not including registrations
on Form S-3), each such registration has been declared or ordered
effective, and the Registrable Securities offered pursuant to each
such registration have been sold, or if the Company has effected any
requested registration (other than a registration for the Company's
Initial Public Offering) pursuant to this Agreement during the
previous six-month period;
(iv) if the Company then meets the eligibility
requirements applicable to the use of Form S-3 in connection with such
registration and is able to effect such requested registration
pursuant to Article 4 hereof; or
(v) if the Company, within ten (10) days of the receipt
of the request of the Holder or Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the
Commission within forty-five (45) days of receipt of such request
(other than with respect to a registration statement relating to a
Rule 145 transaction or an offering solely to employees).
(c) Subject to the foregoing clauses (i) through (v), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Series C Initiating Holders and provide notice to the
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other Holders as required by Section 2.2(a); provided, however, that if the
Company shall furnish to such Holders a certificate signed by the Chairman or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be detrimental to the
Company and its stockholders for such registration statement to be filed, the
Company shall have the right to defer such filing for a period of not more than
180 days after receipt of the request of such Series C Initiating Holders;
provided, further, that the Company shall not be permitted to exercise such
deferral right under this Section 2.2(c) or Section 4.1(c) hereof more than
once in any 365-day period.
2.3 Underwriting.
(a) With respect to registrations initiated pursuant to Section
2.1 herein, the distribution of the Registrable Securities covered by the
request of the Holders shall be effected by means of the method of distribution
selected by the Holders holding a majority of the Registrable Securities
covered by such registration. With respect to registrations initiated pursuant
to Section 2.2 herein, the distribution of Registrable Securities covered by
such request shall be effected by means of the method selection by the holders
of a majority of the Series C Investors holding Registrable Securities. If
such distribution is effected by means of an underwriting, the right of any
Holder to registration pursuant to this Article 2 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein.
(b) If such distribution is effected by means of an underwriting,
the Company (together with all Holders proposing to distribute their securities
through such underwriting (the "Participating Holders")) shall enter into an
underwriting agreement in customary form with a managing underwriter of
nationally recognized standing selected for such underwriting by the Company
and approved by a majority in interest of the Participating Holders, which
approval shall not be unreasonably withheld. Notwithstanding any other
provision of this Article 2, if the managing underwriter advises the
Participating Holders in writing that marketing factors require a limitation of
the number of shares to be underwritten, then the underwriters may exclude
shares requested to be included in such registration. The number of shares of
Registrable Securities to be included in the registration and underwriting
shall be allocated among the Participating Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Participating Holders at the time of filing the registration statement. In
addition, if the managing underwriter further determines that marketing factors
require a further limitation on the number of shares proposed to be registered
by each of Daniel Pelson ("Pelson"), and Jane Mount ("Mount"), then the
underwriters may exclude such shares as may be necessary to effect such
registration in proportion as nearly as practicable, to the respective amounts
of Registrable Securities held by each of Pelson and Mount at the time of
filing the registration statement. No Registrable Securities excluded from the
underwriting by reason of the managing underwriter's marketing limitation shall
be included in such registration.
(c) If any Participating Holder disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the other Participating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration; provided, however, that if by the withdrawal of
such Registrable Securities a greater number of Registrable Securities held by
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other Participating Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all Participating Holders who have included Registrable Securities in
the registration the right to include additional Registrable Securities in the
same proportion used in determining the underwriter limitation in this Section
2.3.
2.4 Inclusion of Shares by Company. If the distribution of
Registrable Securities is being effected by means of an underwriting and if the
managing underwriter has not limited the number of Registrable Securities to be
underwritten, the Company may include securities for its own account or for the
account of others in such registration if the managing underwriter so agrees.
The inclusion of such shares shall be on the same terms as the registration of
shares held by the Participating Holders. In the event that the underwriters
exclude some of the securities to be registered, the securities to be sold for
the account of the Company and any other holders shall be excluded in their
entirety prior to the exclusion of any Registrable Securities.
2.5 Cancellation of Registration. A majority in interest of the
Participating Holders shall have the right to cancel a proposed registration of
Registrable Securities pursuant to Article 2 when, in their discretion, market
conditions are so unfavorable as to be seriously detrimental to an offering
pursuant to such registration. Such cancellation of a registration shall not
be counted as one of the three (3) such requested registrations pursuant to
Section 2.1(b)(iii) or the one (1) such requested registration pursuant to
Section 2.2; provided, however, that the Holders canceling such registration
shall pay expenses attributable to such registration.
ARTICLE 3
COMPANY REGISTRATION
3.1 Notice of Registration to Holders. If at any time or from
time to time the Company shall determine to register any of its securities,
either for its own account or the account of a security holder or holders,
other than (i) a registration qualifying as an Initial Public Offering (ii) a
registration relating solely to employee benefit plans on Form S-8 (or any
successor form) or (iii) a registration relating solely to a Commission Rule
145 transaction on Form S-4 (or any successor form or other form not available
for registering the Registrable Securities to the public), the Company will:
(a) promptly give to each Holder written notice thereof, and
(b) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within 30 days after receipt of such written notice from the
Company described in Section 3.1(a), by any Holder or Holders.
3.2 Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3.1(a). In such event, the right of any Holder to
registration pursuant to this Article 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their
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securities through such underwriting shall (together with the Company) enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or
all Registrable Securities from such registration and underwriting. The
Company shall so advise all Holders of Registrable Securities, and the number
of shares of Common Stock to be included in such registration shall be
allocated as follows: first, for the account of the Company, all shares of
Common Stock proposed to be sold by the Company, and second, for the account of
any other stockholders of the Company participating in such registration, the
number of shares of Common Stock requested to be included in the registration
by such other stockholders in proportion, as nearly as practicable, to the
respective amounts of securities that are proposed to be offered and sold by
such other stockholders of such securities at the time of filing the
registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriters' marketing limitation shall be
included in such registration.
(b) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration. If any Holder disapproves of the terms of any
such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, but
the Holder shall continue to be bound by Article 8 hereof.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not a Holder has elected to include Registrable
Securities in such registration, without thereby incurring any liability to the
Holders of the Registrable Securities.
ARTICLE 4
REGISTRATION ON FORM S-3
4.1 Request for Registration.
(a) In addition to the rights set forth in Articles 2 and 3
hereof, if a Holder or Holders request that the Company file a registration
statement on Form S-3 (or any successor to Form S-3) for a public offering of
shares of Registrable Securities having an aggregate offering price of at least
$1,000,000 (based on the then current market price) and the Company is a
registrant entitled to use Form S-3 (or any successor form to Form S-3) to
register such shares for such an offering, the Company shall use its best
efforts to cause such shares to be registered for the offering as soon as
practicable on Form S-3 (or any such successor form to Form S-3) and shall
promptly give written notice of the proposed registration to all other Holders.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Article 4:
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(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act;
(ii) if the Company, within ten (10) days of the receipt
of the request of the Holder or Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the
Commission within forty-five (45) days of receipt of such request
(other than with respect to a registration statement relating to a
Rule 145 transaction or an offering solely to employees);
(iii) during the period starting with the date of filing
of, and ending on a date which is 180 days following the effective
date of, a registration statement described in (ii) above or filed
pursuant to this Article 4 or Articles 2 or 3 hereof (or such shorter
period as the managing underwriter of the Company's most recent public
offering may agree), provided that the Company is actively employing
in good faith all reasonable efforts to cause such registration
statement to become effective and provided, further, that no other
person or entity could require the Company to file a registration
statement in such period;
(c) Subject to the foregoing clauses (b) (i) through (iii), the
Company shall file a registration statement on Form S-3 covering the
Registrable Securities so requested to be registered as soon as practicable
after receipt of the request of the Holders; provided, however, that if the
Company shall furnish to such Holders a certificate signed by the Chairman or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be detrimental to the
Company and its stockholders for such registration statement to be filed on or
before the date filing would be required, and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than 90 days after receipt
of the request of the Holders; provided, further, that the Company shall not be
permitted to exercise such deferral right under this Section 4.1(c) or Section
2.1(c) or 2.2(c) hereof more than once in any 365-day period.
4.2 Underwriting.
(a) The distribution of the Registrable Securities covered by the
registration on Form S-3 shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 4 shall be conditioned upon such Holder's participation in such
underwriting, if any, and the inclusion of such Holder's Registrable Securities
in such underwriting.
(b) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting, the Company (together
with all Holders proposing to distribute their securities through such
underwriting) shall enter into an underwriting agreement in customary form with
a managing underwriter of nationally recognized standing selected for such
underwriting by the Company and approved by a majority in interest of the
Holders requesting registration on Form S-3, which approval shall not be
unreasonably withheld.
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Notwithstanding any other provision of this Article 4, if the managing
underwriter advises the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the underwriters
may exclude some or all of the shares requested to be included in such
registration, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing
the registration statement. No Registrable Securities excluded from the
underwriting by reason of the managing underwriter's marketing limitation shall
be included in such registration.
(c) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting and if any Holder of
Registrable Securities disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Holders. The Registrable Securities and/or other
securities so withdrawn shall also be withdrawn from registration; provided,
however, that if by the withdrawal of such Registrable Securities a greater
number of Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used in determining the underwriter
limitation in this Section 4.2.
4.3 Inclusion of Shares by Company. If the distribution of the
Registrable Securities pursuant to this Article 4 is effected by means of an
underwriting and if the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities
for its own account or for the account of others in such registration if the
managing underwriter so agrees and if the number of Registrable Securities held
by Holders requesting registration on Form S-3 which would otherwise have been
included in such registration and underwriting will not thereby be limited.
The inclusion of such shares shall be on the same terms as the registration of
shares held by the Holders requesting such registration. In the event that the
underwriters exclude some of the securities to be registered on Form S-3, the
securities to be sold for the account of the Company and any other holders
shall be excluded in their entirety prior to the exclusion of any Registrable
Securities.
ARTICLE 5
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Article 2 (but only with
respect to four (4) registrations effected pursuant to such Article) and
Article 3 hereof and all S-3 Registration Expenses shall be borne by the
Company. All Selling Expenses relating to Registrable Securities registered by
the Holders shall be borne by the Holders of such Registrable Securities pro
rata on the basis of the number of shares so registered.
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ARTICLE 6
REGISTRATION PROCEDURES
(a) In the case of each registration effected by the Company
pursuant to this Agreement, the Company will keep each Holder advised in
writing as to the initiation of each registration and as to the completion
thereof. The Company agrees to use its best efforts to effect or cause such
registration to permit the sale of the Registrable Securities covered thereby
by the Holders thereof in accordance with the intended method or methods of
distribution thereof described in such registration statement. In connection
with any registration of any Registrable Securities pursuant to Article 2, 3 or
4 hereof, the Company shall, as soon as reasonably possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its best
efforts to cause such registration statement filed to become effective
(provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company comply with
subparagraph (iii) of this paragraph (a)) as soon as reasonably
possible thereafter;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such registration statement as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement,
and furnish to the holders of the Registrable Securities covered
thereby copies of any such supplement or amendment prior to this being
used and/or filed with the Commission; and comply with the provisions
of the Securities Act with respect to the disposition of all the
Registrable Securities to be included in such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) provide (A) the Holders of the Registrable Securities
to be included in such registration statement, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement agent, if
any, therefor, (D) one counsel for such underwriters or agent, and (E)
not more than one counsel for all the Holders of such Registrable
Securities, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with
the Commission, and each amendment or supplement thereto;
(iv) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified above,
make available for inspection by the parties referred to in Section
6(a)(iii) above such financial and other information and books and
records of the Company, and cause the officers, directors, employees,
counsel and independent certified public accountants of the Company to
respond to such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such Section
6(a)(iii), to conduct a reasonable investigation within the meaning of
the Securities Act; provided, however, that each such party shall be
required to maintain in
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confidence and not disclose to any other person or entity any
information or records reasonably designated by the Company in writing
as being confidential, until such time as (a) such information becomes
a matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (b) such party shall be
required so to disclose such information pursuant to the subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter, or (c) such information is required to
be set forth in such registration statement or the prospectus included
therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such
registration statement, prospectus, amendment or supplement, as the
case may be, does not include an untrue statement of a material fact
or omit to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and
provided, further, that the Company need not make such information
available, nor need it cause any officer, director or employee to
respond to such inquiry, unless each such Holder of Registrable
Securities to be included in a registration statement hereunder and
such counsel, upon the Company's request, execute and deliver to the
Company an undertaking to substantially the same effect contained in
the second preceding proviso;
(v) promptly notify the Holders of Registrable Securities
to be included in a registration statement hereunder, the sales or
placement agent, if any, therefor and the managing underwriter of the
securities being sold and confirm such advice in writing, (A) when
such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
registration statement or the prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, (D) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (E) if it shall be the case, at any time when a
prospectus is required to be delivered under the Securities Act, that
such registration statement, prospectus, or any document incorporated
by reference, in any of the foregoing contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vi) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such
registration statement for sale in any jurisdiction at the earliest
practicable date;
(vii) if requested by any managing underwriter or
underwriter, any placement or sales agent or any Holder of Registrable
Securities to be included in a registration statement, promptly
incorporate in a prospectus, prospectus supplement or post-effective
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amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Holder may reasonably specify should
be included therein relating to the terms of the sale of the
Registrable Securities included thereunder, including, without
limitation, information with respect to the number of Registrable
Securities being sold by such Holder or agent or to such underwriters,
the name and description of such Holder, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus; prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus, prospectus
supplement or post-effective amendment;
(viii) furnish to each Holder of Registrable Securities to
be included in such registration statement hereunder, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof
and the counsel referred to in Section 6(a)(iii) an executed copy of
such registration statement, each such amendment and supplement
thereto (in each case excluding all exhibits and documents
incorporated by reference) and such number of copies of the
registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act, as such Holder, agent, if any,
and underwriter, if any, may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Holder
sold by such agent or underwritten by such underwriter and to permit
such Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to
the use of such prospectus and any amendment or supplement thereto by
each such Holder and by any such agent and underwriter, in each case
in the form most recently provided to such party by the Company, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto or of the issuance
by the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation of any proceedings for
that purpose;
(ix) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement
under such other securities laws or blue sky laws of such
jurisdictions to be designated by the Holders of a majority of such
Registrable Securities participating in such registration and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof, as any Holder and each underwriter, if any, of the securities
being sold shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions for so long as may be necessary to enable such Holder,
agent or underwriter to complete its distribution of the Registrable
Securities pursuant to such registration statement and (C) take any
and all such actions as may be reasonably necessary or advisable to
enable such Holder, agent, if
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<PAGE> 17
any, and underwriter to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
the Company shall not be required for any such purpose to (1) take any
action to effect any such registration, qualification or compliance in
any particular jurisdiction in which it would not otherwise be
required to execute a general consent to service of process in
effectuating such registration, qualification or compliance, but for
the requirements of this Section 6(a)(ix), or (2) subject itself to
taxation in any such jurisdiction;
(x) cooperate with the Holders of the Registrable
Securities to be included in a registration statement hereunder and
the managing underwriters to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved,
or produced by any combination of such methods, on steel engraved
borders and which shall not bear any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered
in such names as the managing underwriters may request at least two
business days prior to any sale of the Registrable Securities;
(xi) provide a CUSIP number for all Registrable
Securities, not later than the effective date of the registration
statement;
(xii) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, and take such other
actions in connection therewith as the Holders of at least a majority
of the Registrable Securities being sold shall reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities;
(xiii) whether or not an agreement of the type referred to
in the preceding subsection if entered into and whether or not any
portion of the offering contemplated by such registration statement is
an underwritten offering or is made though a placement or sales agent
or any other entity, (A) make such representations and warranties to
the Holders of such Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with any
offering of equity securities pursuant to any appropriate agreement
and/or to a registration statement filed on the form applicable to
such registration statement; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters,
if any, and as the Holders of at least a majority of such Registrable
Securities may reasonably request, addressed to such Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration
statement (and if such registration statement contemplates an
underwritten offering of a part of or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall include, without limitation, the due
organization of the Company, and its subsidiaries, if any; the
qualification of the Company, and its subsidiaries, if any, to
transact business as foreign companies; the due authorization,
execution and delivery of this agreement and of any agreement of the
typed referred to in Section 6(a)(xii) hereof; the due authorization,
valid issuance, and the fully
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paid status of the capital stock of the Company; the absence of
material legal or governmental proceedings involving the Company; the
absence to the knowledge of such counsel of a breach by the Company or
its subsidiaries of, or a default under, agreements binding the
Company or any subsidiary; the absence of governmental approvals
required to be obtained in connection with the registration statement,
the offering and sale of the Registrable Securities, this Agreement or
any agreement of the type referred to in Section 6(a)(xii) hereof; the
compliance as to form of such registration statement and any documents
incorporated by reference therein with the requirements of the
Securities Act; the effectiveness of such registration statement under
the Securities Act; and, as of the date of the opinion and of the
registration statement or most recent post-effective amendment
thereto, as the case may be, the absence, to the knowledge of such
counsel, from such registration statement and the prospectus included
therein, as then amendment or supplemented, and from the documents
incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact necessary to
make the statements therein not misleading (in case of such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C)
obtain a "cold" comfort letter or letters from the independent
certified public accountants of the Company addressed to the Holders
and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (I) the effective date of such
registration statement and (II) the effective date of any prospectus
supplement to the prospectus included in such registration statement
or post-effective amendment to such registration statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus (and, if such registration statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters of
such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested by Holders of
at least a majority of the Registrable Securities being sold and the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above and
the compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered
into by the Company; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Sections 5 and 7 hereof;
(xiv) notify in writing each Holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Agreement and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xv) engage to act on behalf of the Company with respect
to the Registrable Securities to be so registered a registrar and
transfer agent having such duties and
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responsibilities (including, without limitation, registration of
transfers and maintenance of stock registers) as are customarily
discharged by such an agent, and to enter into such agreements and to
offer such indemnities as are customary in respect thereof;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its Holders, as soon as practicable, but in any event not later
than 18 months after the effective date of such registration
statement, an earnings statement covering a period of at least twelve
months which shall satisfy the provisions of Section 6(a) of the
Securities Act (including, at the option of the Company, pursuant to
Rule 158 thereunder); and
(xvii) cause all such Registrable Securities to be listed on
each securities exchange or on the Nasdaq National Market ("Nasdaq
Market") on which similar securities issued by the Company are then
listed and, if not so listed, to be listed and, if listed on the
Nasdaq Market, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statement as a
Nasdaq "National Market System Security" within the meaning of Rule
11Aa2-1 of the Commission or, failing that, to secure Nasdaq Market
authorization for such Registrable Securities and, without limiting
the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities
with the National Association of Securities Dealers.
(b) In the event that the Company would be required, pursuant to
Section 6(a)(v)(F) above, to notify the Holders of Registrable Securities
included in a registration statement hereunder, the sales or placement agent,
if any, and the managing underwriters, if any, of the securities being sold,
the Company shall prepare and furnish to each such Holder, to each such agent,
if any, and to each underwriter, if any, a reasonable number of copies of a
prospectus supplement or amendment so that, as thereafter delivered to the
purchasers of Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing. Each Holder agrees that upon
receipt of any notice from the Company pursuant to Section 6(a)(v)(F) hereof,
such Holder shall forthwith discontinue the distribution of Registrable
Securities until such Holder shall have received copies of such amended or
supplemented registration statement or prospectus, and if so directed by the
Company, such Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Registrable Securities at the time of receipt
of such notice.
(c) The Company may require each Holder of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing but only to the extent that such information is required in
order to comply with the Securities Act. Each such Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or the distribution of such Registrable
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<PAGE> 20
Securities or omits to state any material fact regarding such Holder or the
distribution of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Holder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
ARTICLE 7
INDEMNIFICATION
7.1 The Company will indemnify each Holder, each of its officers
and directors and partners, and such Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act, with respect to which registration
of any of the Registrable Securities under the Securities Act has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of the Securities
Act, against all expenses, claims, losses, damages and liabilities (or actions
in respect thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof, incident to any such registration of any of
the Registrable Securities under the Securities Act which has been effected
pursuant to this Agreement, or based on any 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 any violation by the Company of
any rule or regulation promulgated under the Securities Act, Exchange Act or
any state securities laws applicable to the Company and relating to action or
inaction by the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers and
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling any such persons, each such
underwriter and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission (or alleged untrue statement) or
omission (or alleged omission), made in reliance upon and in conformity with
written information furnished to the Company by such Holder or underwriter and
expressly intended for use in such registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereof.
7.2 Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration is being
effected, severally and not jointly, indemnify and hold harmless the Company,
each of its directors and officers, its legal counsel and independent
accountants, each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers, directors, partners, legal counsel and
independent accountants, if any, and each person controlling such
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Holder within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), to which the Company or such officer, director, underwriter or person
who controls the Company or such underwriter or such legal counsel and
independent accountants, within the meaning of Section 15 of the Securities Act,
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, such Holders, such
directors, officers, partners, legal counsel, independent accountants,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, other document or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Holder and expressly intended for use in such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereof; provided, however, that the obligations of each Holder
hereunder shall be limited to an amount equal to the proceeds to such Holder of
Registrable Securities sold as contemplated herein.
7.3 Each party entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall bear the expense of such defense of the Indemnified Party if
representation of both parties by the same counsel would be inappropriate due
to actual or potential conflicts of interest. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Agreement, unless such failure is
prejudicial to the ability of the Indemnifying Party to defend the action. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation.
7.4 If the indemnification provided for in Section 7.1 or 7.2 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in
Section 7.1 or 7.2, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the sellers of Registrable
Securities on the other hand in connection with statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions
-20-
<PAGE> 22
or proceedings in respect thereof) or expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the sellers of Registrable
Securities and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Holders agree that it would not be just and equitable if
contributions pursuant to this Section 7.4 were to be determined by pro rata
allocation (even if all Sellers of Registrable Securities were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the first sentence
of this Section 7.4. The amount paid by an Indemnified Party as a result of
the expenses, claims, losses, damages or liabilities (or actions or proceedings
in respect thereof) referred to in the first sentence of this Section 7.4 shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any claim,
action or proceeding which is the subject of this Section 7.4. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of sellers of
Registrable Securities to contribute pursuant to this Section 7.4 shall be
several in proportion to the respective amount of Registrable Securities sold
by them pursuant to a registration statement.
ARTICLE 8
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, after such time
as a public market exists for the Common Stock of the Company, the Company
agrees to:
8.1 Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act (or any similar or
analogous rule promulgated under the Securities Act) at all times after the
effective date of the first registration under the Securities Act filed by the
Company for an offering of its securities to the general public; and
8.2 File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements) and make available the benefits of Rule 144; and
8.3 So long as any Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 (at any time
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company filed by the Company, and such other
reports and documents of the Company as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing it to sell
any such securities without registration.
-21-
<PAGE> 23
ARTICLE 9
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
granted Holders under Articles 2, 3 and 4 hereof may be assigned in connection
with any permitted transfer or assignment of the Holder's Registrable
Securities. All transferees and assignees of the rights to cause the Company
to register Registrable Securities granted Holders under Articles 2, 3 and 4
hereof, as a condition to the transfer of such rights, shall agree in writing
to be bound by the agreements set forth herein.
ARTICLE 10
LIMITATIONS ON REGISTRATION RIGHTS
GRANTED TO OTHER SECURITIES
10.1 The parties hereto agree that additional holders may, with the
consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding, be added as parties to this Agreement with respect
to any or all securities of the Company held by them; provided, however, that
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 Registrable
Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company providing for the grant to
such holder of registration rights superior to, or pari passu with, those
granted herein. Any additional parties shall execute a counterpart of this
Agreement, and upon execution by such additional parties and by the Company,
shall be considered Holders for purposes of this Agreement, and shall be added
to the Schedule of Registration Rights Holders.
10.2 In connection with the grant of registration rights to the
holders of the Series C Stock pursuant to this Agreement, each of Sandler,
Bechtel, Highland, Oak and the Other Investors agree and consent to waive the
provisions of Article 10 relating to limitations on registration rights granted
to other securities holders set forth in the Amended and Restated Registration
Rights Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
11.2 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT
OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
RELATED
-22-
<PAGE> 24
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
11.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
11.4 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. Subject to Sections 11.11, 11.12 and 11.13 herein, any
provision of this Agreement may be amended, waived or modified, and this
Agreement may be terminated, if, but only if, such amendment, waiver or
modification or termination is in writing and is signed by the holders of a
majority of the Series A Stock, Series B Stock and Series C Stock provided,
however, that no amendment, waiver, modification or termination may treat any
holder that does not consent thereto differently than a holder that does
consent thereto; whenever any provision of this Agreement requires action or
approval by the holders of a specified number of Series A Stock, Series B Stock
or Series C Stock, such action or approval may be evidenced by a written
consent executed by the requisite holders of Series A Stock Series B Stock or
Series C Stock, without any requirement of a meeting or prior notice to the
other holders of such shares.
11.5 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed given upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth below or on Schedules 1 and 2 hereto, or as
subsequently modified by written notice:
if to the Company:
Bolt, Inc.
104 Hudson Street - 7th Floor North
New York, NY 10013
Attention: Daniel A. Pelson
Telephone: (212) 620-5900
Facsimile: (212) 620-4315
-23-
<PAGE> 25
with a copy to (which shall not constitute notice):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: John R. Pomerance, Esq.
Telephone: (617) 542-6000
Facsimile: (617) 542-2241
if to Sandler:
c/o Sandler Capital Management
767 Fifth Avenue - 45th Floor
New York, NY 10153
Attention: Michael J. Marocco
Telephone: (212) 754-8100
Facsimile: (212) 826-0280
with copy to (which shall not constitute notice):
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.
Washington, DC 20036
Attention: Edward J. O'Connell, Esq.
Telephone: (202) 776-2000
Facsimile: (202) 776-2222
if to Bechtel:
Bechtel Enterprises Holdings, Inc.
50 California Street - Suite 2200
San Francisco, CA 94111
Attention: Kevin Kendrick
Telephone: (415) 768-2312
Facsimile: (415) 951-0847
with copy to (which shall not constitute notice):
Bechtel Enterprises Holdings, Inc.
50 California Street - Suite 2200
San Francisco, CA 94111
Attention: Chief Counsel
Telephone: (415) 768-5721
Facsimile: (415) 951-2233
-24-
<PAGE> 26
if to Highland:
c/o Highland Capital Partners
2 International Place - 22nd Floor
Boston, MA 02110
Attention: Stephen J. Harrick
Telephone: (617) 261-6694
Facsimile: (617) 531-1550
with copy to (which shall not constitute notice):
Hale and Dorr, LLP
60 State Street
Boston, MA 02109
Attention: Peter Tarr, Esq.
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
if to Oak:
Oak Investment Partners
One Gorham Island
Westport, CT 06889
Attention: Ann H. Lamont
Telephone: (203) 226-8346
Facsimile: (203) 226-4203
with copy to (which shall not constitute notice):
Finn Dixon & Herling LLP
1 Landmark Square
Stamford, CT 06901
Attention: Michael Herling, Esq.
Telephone: (203) 964-8000
Facsimile: (203) 348-57777
If to Moore:
c/o Moore Capital Management, Inc.
1251 Avenue of the Americas
New York, NY 10020
Attn: David Lee
Telephone: (212) 782-7033
Facsimile: (212) 782-7550
-25-
<PAGE> 27
With a copy to (which shall not constitute notice):
Akin, Gump, Strauss, Hauer and Feld, LLP
590 Madison Avenue
New York, NY 10022
Attention: Jim Kaye
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
If to Remington:
c/o Moore Capital Management, Inc.
1251 Avenue of the Americas
New York, NY 10020
Attn: David Lee
Telephone: (212) 782-7033
Facsimile: (212) 782-7550
With a copy to (which shall not constitute notice):
Akin, Gump, Strauss, Hauer and Feld, LLP
590 Madison Avenue
New York, NY 10022
Attention: Jim Kaye
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
11.6 Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
11.7 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
11.9 "Market Hold-Off" Agreement. Each Holder agrees, if requested
by the Company and underwriter of Common Stock (or other securities) of the
Company in connection with an Initial Public Offering not to sell or otherwise
transfer or dispose of any Common Stock (or other securities) of the Company
held by such Holder during the one hundred eighty (180) day period following
the effective date of a registration statement of the Company filed under the
Securities Act without the prior consent of such underwriter, provided,
however, that all Holders and officers and directors of the Company enter into
similar agreements.
-26-
<PAGE> 28
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the
foregoing restriction until the end of said one hundred eighty (180) day
period.
11.10 Termination. The obligations of the Company to register
Registrable Securities under this Agreement shall terminate on the date upon
which any such Registrable Securities may be freely tradable pursuant to Rule
144 under the Securities Act, but only with respect to such freely tradable
Registrable Securities.
11.11 Warrant Exercise. Upon the exercise of the Warrant, and upon
the execution and delivery of a counterpart signature page hereto, Lighthouse
shall become a party hereto, be deemed an Other Investor and be bound by the
provisions of this Agreement and Exhibit A hereto shall be automatically
amended, accordingly.
11.12 Option Exercise. Upon each exercise of options to purchase
Common Stock held by Mount and Cohen, respectively, and upon the execution and
delivery of a counterpart signature page hereto by Mount or Cohen, as
applicable, each of Mount and Cohen shall become a party hereto with respect to
the shares of Common Stock issued pursuant to such option exercises, as
applicable, each of them shall be deemed an Other Investor, as applicable, and
each of them shall be bound by the provisions of this Agreement, as applicable,
without any further action by the Company or each of Mount and Cohen,
respectively, and Exhibit A hereto shall be automatically amended, accordingly.
11.13 Other Investors. Upon the sale of any Additional Shares (as
defined in the Stock Purchase Agreement) to Additional Purchasers (as defined
in the Stock Purchase Agreement) in accordance with the Stock Purchase
Agreement, each such Additional Purchaser shall become a party hereto, be
deemed an Other Investor for all purposes hereunder and be bound by the
provisions of this Agreement, without any further action by the Company or such
Additional Purchaser and Exhibit A hereto shall be automatically amended,
accordingly. Each Additional Purchaser (as defined in the Stock Purchase
Agreement), shall, if requested by the Company, execute and deliver a
counterpart signature page hereto, to further evidence such agreement.
-27-
<PAGE> 29
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Registration Rights Agreement as of the ___ day of November, 1999.
BOLT, INC.
By: /s/ Daniel Pelson
----------------------------------
Name:
Title:
BECHTEL ENTERPRISES HOLDINGS, INC.
By: /s/ Robert Dove
----------------------------------
Name:
Title:
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners,
L.P., General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Media Corp., a General
Partner
By: /s/ Edward G. Grinacoff
---------------------------------
Edward G. Grinacoff
President
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners,
L.P., General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Media Corp., a General
Partner
By: /s/ Edward G. Grinacoff
----------------------------
Edward G. Grinacoff
President
<PAGE> 30
HIGHLAND CAPITAL PARTNERS IV LIMITED
PARTNERSHIP
By: Highland Management Partners IV LLC,
its General Partner
By: /s/ illegible
----------------------------------------
Name:
Title:
HIGHLAND ENTREPRENEURS FUND IV LIMITED
PARTNERSHIP
By: Highland Entrepreneurs Fund IV LLC,
its General Partner
By: /s/ illegible
----------------------------------------
Name:
Title:
MJM ASSOCIATES L.P.
By: /s/ Michael J. Marocco
----------------------------------------
Name: Michael J. Marocco
Title: General Partner
/s/ Harvey Sandler
-------------------------------------------
HARVEY SANDLER
/s/ John Kornrech
-------------------------------------------
JOHN KORNREICH
/s/ Samantha McCuen
-------------------------------------------
SAMANTHA MCCUEN
<PAGE> 31
/s/ Jonathan M. Nelson
-----------------------------------------
JONATHAN M. NELSON
/s/ Glenn M. Creamer
-----------------------------------------
GLENN M. CREAMER
/s/ Paul J. Salem
-----------------------------------------
PAUL J. SALEM
/s/ Mark J. Masiello
-----------------------------------------
MARK J. MASIELLO
/s/ Mark A. Pelson
-----------------------------------------
MARK A. PELSON
/s/ Alexander D. Evans
-----------------------------------------
ALEXANDER D. EVANS
/s/ Raymond M. Mathieu
-----------------------------------------
RAYMOND M. MATHIEU
/s/ Michael J. Angelakis
-----------------------------------------
MICHAEL J. ANGELAKIS
/s/ Bo Peabody
-----------------------------------------
BO PEABODY
/s/ Frank Harrison
-----------------------------------------
FRANK HARRISON
/s/ Daniel Pelson
-----------------------------------------
DANIEL PELSON
<PAGE> 32
OAK INVESTMENT PARTNERS VIII, LIMITED
PARTNERSHIP
By: Oak Associates VIII, LLC, its General Partner
By: /s/ Anne H. Lamont
-----------------------------------------------
Name:
Title:
OAK VIII AFFILAITES FUND, LIMITED
PARTNERSHIP
By: Oak VIII Affiliates, LLC, its General Partner
By: /s/ Anne H. Lamont
-----------------------------------------------
Name:
Title:
MOORE GLOBAL INVESTMENTS, LTD.
/s/ illegible
--------------------------------------------------
By: Moore Capital Management, Inc.
Its: Trading Advisor
REMINGTON INVESTMENTS STRATEGIES, L.P.
/s/ illegible
--------------------------------------------------
By: Moore Capital Advisors, L.L.C.
Its: General Partner
<PAGE> 33
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
------------------------------------
Printed Name FORD MOTOR COMPANY
------------------------------------ By: /s/ Phil Horlock
Signature ---------------------------
Name: Phil Horlock
Title: Executive Director
Strategy & New Business
Development
<PAGE> 34
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Comcast Interactive Capital, L.P.
------------------------------------ ------------------------------------
Printed Name By: c/c Partners
Name By: c/c Venture Management, L.L.C.
By: /s/ Illegible
------------------------------------ ---------------------------------
Signature Name: Illegible
Title: Vice President
<PAGE> 35
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
1998 Kornreich Children's Trust
------------------------------------ ---------------------------------------
Printed Name Name
Name
By: /s/ John Konreich
------------------------------------ -------------------------------------
Signature Name: John Konreich
Title:
<PAGE> 36
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Andrew Sandler
------------------------------------ -------------------------------------
Printed Name Name
Name
/s/ Andrew Sandler By:
------------------------------------ ----------------------------------
Signature Name:
Title:
<PAGE> 37
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Waterview Partners, L.P.
------------------------------------ ----------------------------------------
Printed Name By: WaterView Advisors, LLC
Name
By: /s/ Augustus K. Oliver
------------------------------------ -------------------------------------
Signature Name: Augustus K. Oliver
Title: Senior Managing Director
<PAGE> 38
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Entercom Delaware Holdings Company, LLC
------------------------------------ ----------------------------------------
Printed Name Name
Name
By: /s/ Stephen F. Fisher
------------------------------------ -------------------------------------
Signature Name: Stephen F. Fisher
Title: Senior VP & CFO
<PAGE> 39
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Time Warner Inc.
------------------------------------ ----------------------------------------
Printed Name Name
Name
By: /s/ Robert Marcus
------------------------------------ -------------------------------------
Signature Name: Robert Marcus
Title: Vice President
<PAGE> 40
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Sandler Internet Partners, L.P.
------------------------------------ ----------------------------------------
Printed Name By Sandler Investment Partners, L.P.,
General Partner
By Sandler Capital Management, General
Partner
By MUDM Corp., a General Partner
By: /s/ Edward Grinacoff
------------------------------------ ------------------------------------
Signature Edward Grinacoff, President
<PAGE> 41
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
ML/BI L.L.C.
Mintz Levin Investments L.L.C., its
Manager
------------------------------------ ------------------------------------
Printed Name By
By: /s/ Irwin Heller
------------------------------------ ---------------------------------
Signature Name: Irwin Heller
Title: Manager
<PAGE> 42
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Invemed Associates, LLC
------------------------------------ ------------------------------------
Printed Name By
By: /s/ John Baran
------------------------------------ ---------------------------------
Signature Name: John Baran
Title: C.F.O.
<PAGE> 43
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Caribou Ventures
------------------------------------ ---------------------------------------
Printed Name By
By: /s/ William "Bo" Peabody
------------------------------------ ------------------------------------
Signature Name: William Bo S. Peabody
Title: General Partner
<PAGE> 44
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Peabody Sabot Ventures
------------------------------------ ------------------------------------
Printed Name By
By: /s/ William "Bo" Peabody
------------------------------------ ---------------------------------
Signature Name: William Bo S. Peabody
Title: General Partner
<PAGE> 45
Counterpart Signature Page For Other Investors
The undersigned hereby agrees to become a party to that certain Second
Amended and Restated Registration Rights Agreement dated as of November 17,
1999 (the "Agreement") among Bolt, Inc. (the "Company") and others. From and
after all the undersigned's execution and delivery of this Counterpart
Signature Page, the undersigned shall be a party to the Agreement.
For Individuals: For entities:
Peabody Family Ventures
------------------------------------ ------------------------------------
Printed Name By:
By: /s/ William "Bo" Peabody
------------------------------------ ---------------------------------
Signature Name: William Bo S. Peabody
Title: General Partner
<PAGE> 46
Exhibit A
Schedule of Registration Rights Holders
1. Sandler Capital IV Partners, L.P.
2. Sandler Capital IV Partners FTE, L.P.
3. Sandler Internet Partners, L.P.
4. Bechtel Enterprises Holdings, Inc.
5. Highland Capital Partners IV Limited Partnership
6. Highland Entrepreneurs Fund IV Limited Partnership
7. MJM Associates L.P.
8. Harvey Sandler
9. 1998 Kornreich Children's Trust
10. Andrew Sandler
11. Samantha McCuen
12. Jonathan M. Nelson
13. Glenn M. Creamer
14. Paul J. Salem
15. Mark J. Masiello
16. Mark A. Pelson
17. Alexander D. Evans
18. Raymond M. Mathieu
19. Michael J. Angelakis
20. Peabody Family Ventures
21. Peabody Sabot Ventures
22. William "Bo" S. Peabody
23. Frank Harrison
24. Oak Investment Partners VIII, Limited Partnership
25 Oak VIII Affiliates Fund, Limited Partnership
26. Daniel Pelson
<PAGE> 47
27. Moore Global Investments, Ltd.
28. Remington Investments Strategies, L.P.
29. Comcast Interactive Capital, L.P.
30. Ford Motor Company
31. WaterView Partnres, L.P.
32. Entercom Delaware Holdings Company, LLC
33. Time Warner, Inc.
34. Caribou Ventures
35. Al Pastino
36. Justin T. Nesci
37. Juan Patino
38. Endevour
39. ML/BI L.L.C.
40. Lawrence V. Calcano
41. Blue Ridge Capital
42. Invemed Associates, LLC
43. Thomas D. Menard
44. Concrete Media, Inc.
45. America Online, Inc.
<PAGE> 48
Schedule 1
1. MJM Associates L.P.
2. Harvey Sandler
3. 1998 Kornreich Children's Trust
4. Andrew Sandler
5. Samantha McCuen
6. Jonathan M. Nelson
7. Glenn M. Creamer
8. Paul J. Salem
9. Mark J. Masiello
10. Mark A. Pelson
11. Alexander D. Evans
12. Raymond M. Mathieu
13. Michael J. Angelakis
14. Peabody Family Ventures
15. Peabody Sabot Ventures
16. William "Bo" S. Peabody
17. Frank Harrison
<PAGE> 49
Schedule 2
Purchasers of Series C Stock
1. Moore Global Investments, Ltd.
2. Remington Investments Strategies, L.P.
3. Comcast Interactive Capital, L.P.
4. Bechtel Enterprises Holdings, Inc.
5. Oak Investment Partners VIII, Limited Partnership
6. Oak VIII Affiliates Fund, Limited Partnership
7. Form Motor Company
8. WaterView Partners, L.P.
9. Entercom Delaware Holdings Company, LLC
10. Sandler Capital IV Partners, L.P.
11. Sandler Capital IV Partners FTE, L.P.
12. Sandler Internet Partners, L.P.
13. Time Warner, Inc.
14. Peabody Sabot Ventures
15. Peabody Family Ventures
16. Caribou Ventures
17. Al Pastino
18. Justin T. Nesci
19. Frank M. Harrison
20. Daniel Pelson
21. Juan Patino
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22. Endevour
23. Thomas D. Menard
24. ML/BI L.L.C.
25. Highland Capital Partners IV, Limited Partnership
26. Highland Entrepreneurs Fund IV, Limited Partnership
27. Lawrence V. Calcano
28. Blue Ridge Capital
29. Invemed Associates, LLC
30. Sigurd C. Kirk
31. Concrete Media, Inc.
32. America Online, Inc.