Registration Rights Agreement - EarthWeb Inc., Lloyd Linn and Diane Rickert
EARTHWEB INC.
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of February 2, 1999, by and among EarthWeb
Inc., a Delaware corporation (the "Company"), and the persons listed on the
signature pages hereof (the "Holders"), who are holders of the Company's Common
Stock, par value $.01 per share ("Common Stock").
PREAMBLE
The Company desires to extend registration rights to the Holders.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the Company and the Holders agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Commission" shall mean the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "Holders" shall have the meaning set forth in the preamble.
(d) "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement, and compliance
with applicable state securities laws.
(e) "Registrable Securities" shall mean all of the following to the extent
the same have not been sold to the public: (i) any and all shares of
Common Stock of the Company held by the Holders as of the date of this
Agreement; (ii) any and all shares of Common Stock of the Company
issued at any time during the term of this Agreement to the Holders
pursuant to the Agreement and Plan of Merger dated as of February 2,
1999 by and among the Company and the Holders, any other parties; or
(iii) stock issued in respect of the securities referred to in (i) or
(ii) as a result of a stock split, stock dividend, reclassification,
exchange, recapitalization or combination. Notwithstanding the
foregoing, Registrable Securities shall not include otherwise
Registrable Securities (A) that have been sold by a Holder in a
transaction in which his rights under this Agreement are not properly
assigned; or (B) (I) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities
transaction, (II) sold in a
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transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that
all transfer restrictions, and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale or
(III) the registration rights associated with such securities have
been terminated pursuant to Section 11 of this Agreement.
(f) "Rule 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from
time to time, but shall not include Rule 144A.
(g) "Rule 144A" shall mean Rule 144A under the Securities Act or any
successor or similar rule as may be enacted by the Commission from
time to time, but shall not include Rule 144.
(h) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar Federal statute and the rules and regulations thereunder,
all as the same shall be in effect at the time.
(i) "Shelf Registration" means a registration effected pursuant to Section
2 hereof.
(j) Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with
the Commission which covers some or all of the Registrable Securities,
as applicable, and, at the option of the Company, such shares of
capital stock (or other securities of the Company) as the Company
shall designate therein (the "Company Shelf Securities") on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
As used herein, all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Agreement and Plan of Merger dated as
of February 2, 1999 by and among the Company, EW Acquisition Corporation, D&L
Online, Inc. and the Holders.
Section 2. Shelf Registration.
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(a) The Company shall file within 75 days from the date of this Agreement
with the Commission a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders and the
Company Shelf Securities by the Company from time to time in
accordance with the methods of distribution elected by such Holders,
or the Company, as the case may be, and set forth in such Shelf
Registration Statement and, thereafter, and use commercially
reasonable efforts to cause such Shelf Registration Statement to be
declared effective under the Act as promptly as practicable; provided,
however, that no Holder shall be entitled to have the Registrable
Securities held by him/her covered by such Shelf Registration unless
such Holder is in compliance with the terms of this Agreement.
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(b) The Company shall use commercially reasonable efforts (i) to keep the
Shelf Registration Statement continuously effective in order to permit
the prospectus forming part thereof to be usable by the Holders until
two (2) years from its effective date or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement, and (ii) after the effectiveness of the Shelf
Registration Statement, promptly upon the request of any Holder to
take any action reasonably necessary to register the sale of any
Registrable Securities of such Holder and to identify such Holder as a
selling securityholder.
(c) Registration Procedures. In connection with any Shelf Registration
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Statement, the Company shall:
(i) prepare and file with the Commission a Shelf Registration
Statement, on an appropriate form pursuant to Rule 415 of the
Securities Act and which the Company is eligible to use, with
respect to such shares and use its best efforts to cause such
Shelf Registration statement to become and remain effective as
provided herein;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and current and to comply with
the provisions of the Act with respect to the disposition of all
shares covered by such registration statement, including such
amendments and supplements as may be necessary to reflect the
intended method of disposition from time to time of the
prospective seller or sellers of such Registrable Securities; and
(iii) use its best efforts to register or qualify the shares of
Registrable Securities covered by such registration statement
under such other securities or blue sky or other applicable laws
of such jurisdiction within the United States as each prospective
seller shall reasonably request, to enable such seller to
consummate the public sale or other disposition in such
jurisdictions of the shares of Registrable Securities owned by
such seller; provided, however, that in no event shall the
Company be obligated to qualify to do business in any
jurisdiction where it is not at the time so qualified or to take
any action that would subject it to service of process in suits
other than those arising out of the offer or sale of the
Registrable Securities covered by such registration statement in
any jurisdiction where it is not at the time so subject.
(d) Limitations on Offerings by the Holders.
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(i) Notwithstanding the other provisions of this Section 2, if at
any time the Company desires to effect a registered offering of
securities (pursuant to the Shelf Registration Statement or
otherwise) and simultaneously therewith any Holder desires to
effect an underwritten offering pursuant to a Shelf Registration
Statement and if the underwriter, determines that (i) marketing
factors require a limitation of the total number of shares to be
underwritten, or (ii) the offering price per share would be
reduced by the inclusion of the securities of the Company, then
the number of shares to be included in the underwriting shall
first be allocated among all Holders who
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indicated to the Company their decision to distribute any of
their Registrable Securities through such underwriters in
proportion, as nearly as practicable, to the respective numbers
of shares of Registrable Securities which such Holders indicated
initially they wished to be included in the underwriting, then
the remainder, if any, to the Company.
(ii) Anything in this Agreement to the contrary notwithstanding,
the Holders shall not offer any Registrable Securities pursuant
to the Shelf Registration Statement if such offering would
require the Company (i) to furnish any financial statements other
than as of the end of a fiscal quarter or (ii) to furnish any
audited financial statements other than as of the end of a fiscal
year unless the Holder(s) requesting such registration agree to
bear the expenses of furnishing such financial statements, in
each case, which have not otherwise been included in any filing
prior to such time in any filing made pursuant to the Securities
Act or Exchange Act. In addition to the foregoing, in the event
of a proposed offering by a Holder pursuant to the Shelf
Registration Statement, at such time as any registration
statement would be required to include audited financial
statement as of a fiscal year end, the Company may delay the
dissemination of the required notice and the taking of any action
to effect a supplement to the Shelf Registration Statement until
such time as such audited financial statements are available in
the ordinary course of business.
(iii) No Holder shall offer any Registrable Securities pursuant to
the Shelf Registration Statement within 30 days after the
effectiveness of any other registration of the Company's capital
stock which becomes effective after September 30, 1999; provided,
that such prohibition shall not apply to the extent that it would
prevent such Holder from selling the Schedule A amount of Common
Stock during the applicable quarter in accordance with the
Company's insider trading policies and such shares are not
included in such other registration statement.
Section 3. Piggyback Registration.
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(a) If at any time, or from time to time, the Company shall determine to
register any of its securities for its own account or the account of
any of its shareholders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to an
Commission Rule 145 transaction, a transaction relating solely to the
sale of debt or convertible debt instruments or a registration on any
form (other than Form S-1, S-2 or S-3, or their successor forms) which
does not include at least substantially the same information as would
be required to be included in a registration statement covering the
sale of Registrable Securities, the Company will:
(i) give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting involved
therein, all the Registrable Securities specified in a written
request or requests, made within fifteen
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(15) days after receipt of such written notice from the Company,
by any Holder or Holders, except as set forth in subsection (b)
below.
(b) If the registration is for a firm commitment underwritten registered
public offering the Company shall so advise the Holders as a part of
the written notice given pursuant to subsection 3(a)(i). In such
event, the right of any Holder to registration pursuant to Section 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 securities through such underwriting
shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 3, if the managing underwriter
determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the
number of Registrable Securities to be included in the registration
and underwriting and the number of Registrable Securities to be
included in such offering shall be reduced to zero before any
reduction in any securities to be offered by the Company on its own
behalf. The Company shall so advise all Holders and the other Holders
distributing their securities through such underwriting pursuant to
piggy-back registration rights similar to this Section 3, and the
number of shares of Registrable Securities and other securities that
may be included in the registration and underwriting shall be
allocated among all Holders (and any other selling shareholders), pro
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rata, as nearly as practicable, based on the numbers of Registrable
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Securities and other shares proposed to be sold by selling
shareholders, each such party wishes to register pursuant to this
Section 3. If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to
the Company and the managing underwriter prior to the execution of the
applicable underwriting agreement by the Holder. 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 limit imposed by the underwriters), the Company shall offer
to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities.
Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
Section 4. Expenses of Registration. In addition to the fees and expenses
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contemplated by Section 5 hereof, all expenses incurred in connection with
one registration pursuant to Section 2 hereof, and all registrations
pursuant to Section 3 hereof, including without limitation all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company and expenses of any special audits
of the Company's financial statements incidental to or required by such
registration, shall be borne by the Company, except that the Company shall
not be required to pay underwriters' fees, discounts or commissions
relating to Registrable Securities sold for the account of any Holder or
fees of legal counsel for the Holders.
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Section 5. Registration Procedures. In the case of each registration effected
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by the Company pursuant to this Agreement, the Company will keep each
Holder participating therein advised in writing as to the initiation of
each registration and as to the completion thereof. At its expense the
Company will:
(a) keep such registration pursuant to Section 3 continuously effective
until the date on which the Holder or Holders have completed the
distribution described in the registration statement relating thereto;
(b) promptly prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act;
(c) furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(d) use reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the
lifting of any suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(e) subject to Section 2(c)(iii), register or qualify such Registrable
Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as any Holder or underwriter reasonably requires;
(f) cause all Registrable Securities covered by such registrations to be
listed on each securities exchange, including NASDAQ, on which similar
securities issued by the Company are then listed;
(g) cause its accountants to issue to the underwriter, if any, or the
Holders, if there is no underwriter, comfort letters and updates
thereof, in customary form and covering matters of the type
customarily covered in such letters with respect to underwritten
offerings;
(h) cause its counsel to issue to the underwriter, if any, or to the
Holders, if there is no underwriter, opinions in customary form and
covering matters of the type customarily covered in such opinions with
respect to underwritten offerings;
(i) enter into such customary agreements (including underwriting
agreements in customary form);
(j) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and independent
accountants to supply all
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information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(k) immediately notify each Holder, at any time a prospectus covered by
such registration statement is required to be delivered under the
Securities Act, of the happening of any event of which it has
knowledge as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing; and
(l) take such other actions as shall be reasonably requested by any
Holder.
For purposes of Sections 5(a) and 5(b) above, the period of
distribution of Registrable Securities in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Securities in any other registration shall be deemed to extend
until the earlier of the sale of all Registrable Securities covered thereby and
six (6) months after the effective date thereof.
Section 6. Indemnification.
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(a) In the event of a registration, qualification or compliance of any of
the Registrable Securities under the Securities Act pursuant to
Sections 2 or 3, the Company will indemnify and hold harmless each
Holder of such Registrable Securities thereunder, each underwriter of
such Registrable Securities thereunder and each other person, if any,
who controls such Holder or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Holder, underwriter or controlling
person may become subject under the Securities Act, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, any
offering circular or other offering document or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act or any
state securities law or rule or regulation promulgated under the
Securities Act or any state securities law applicable to the Company
and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers, directors
and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage,
liability or action; provided, that, notwithstanding the foregoing,
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the Company will not be liable in any such case to the extent that any
such claim, loss,
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damage or liability arises out of or is based on any untrue statement
or omission based upon written information furnished to the Company by
an instrument duly executed by such Holder or underwriter specifically
for use therein.
(b) Each Holder will, if Registrable Securities held by or issuable to
such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify
and hold harmless the Company, each of its directors and officers,
each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company and
each underwriter within the meaning of the Securities Act, and each
other Holder, each of such other Holder's officers, directors and
partners and each person controlling such other Holder, against all
claims, losses, expenses, damages and liabilities (or actions in
respect thereof) 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
offering document, or 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, persons or
underwriters for any reasonable legal or any other expenses incurred
in connection with investigating, defending or settling 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 or other
offering document in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by
such Holder specifically for use therein; provided, however, the total
amount for which any Holder, its officers, directors and partners, and
any person controlling such Holder, shall be liable under this Section
6(b) shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the
public offering price of shares sold by such Holder under such
registration statement bears to the total public offering price of all
securities sold thereunder but not to exceed, in any event, the
aggregate proceeds received by such Holder from the sale of
Registrable Securities sold by such Holder in such registration,
qualification or compliance.
(c) Each party entitled to indemnification under this Section 6 (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 claims 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 be unreasonably
withheld), and the Indemnified Party may participate in such defense
at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations hereunder, unless such
failure resulted in actual detriment to the Indemnifying Party. The
Indemnifying Party shall not be liable to indemnify any Indemnified
Party for any settlement of any such action effected without the
Indemnifying Party's consent. No Indemnifying Party, in the
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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.
(d) Notwithstanding the foregoing, to the extent that the provisions on
indemnification contained in the underwriting agreements entered into
among the selling Holders, the Company and the underwriters in
connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement
shall be controlling as to the Registrable Securities included in the
public offering.
(e) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense
referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to
the amount paid or payable by such Indemnified Party as a result of
such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party
on the one hand and of the Indemnified Party on the other hand in
connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relevant fault of the
Indemnifying Party and the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any Holder shall
be obligated to contribute pursuant to this Section 6(e) shall be
limited to an amount equal to the proceeds to such Holder of the
Registrable Securities sold pursuant to the registration statement
which gives rise to such obligation to contribute.
(f) The indemnification provided by this Section 6 shall be a continuing
right to indemnification and shall survive the registration and sale
of any securities by any definition entitled to indemnification
hereunder and the expiration or termination of this Agreement.
Section 7. Lockup Agreement. In consideration for the Company agreeing to its
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obligations under this Agreement, each Holder agrees in connection with any
underwritten registration of the Company's securities in which such Holder
participates pursuant to Section 3 hereof or any other underwritten
registration which such Holder does not participate but for which the
obligations set forth in this Section 7 would not prevent such Holder from
selling the amount of Common Stock specified in Section 9(b) hereof during
such a quarter in accordance with the Company's insider trading policies
upon the request of the Company and the underwriters managing the
underwritten offering of the Company's securities, not to publicly sell,
make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included
in the registration) without the prior written
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consent of the Company and such underwriters for such period of time from
the effective date of such registration as the Company and the underwriters
may specify.
Section 8. Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall promptly furnish to the
Company such information regarding such Holder or Holders and the
distribution proposed by such Holder or Holders as the Company may request
in writing and as shall be reasonably required in connection with any
registration' referred to herein.
Section 9. Sales. (a) With a view to making available to Holders of
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Registrable Securities the benefits of certain rules and regulations of the
Commission which may permit the sale of the Registrable Securities to the
public without registration, the Company agrees at all times prior to the
termination of this Agreement.
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 and Rule 144A;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(iii) furnish to each Holder so long as such Holder owns any
Registrable Securities forthwith, upon written request, a written
statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act
(to the extent that it is then subject to any such reporting
requirements), a copy of the most recent annual and quarterly
report of the Company, and such other reports and documents filed
by the Company under the Exchange Act as may be reasonably
requested by such Holder in connection with availing the Holder
of any rule or regulation of the Commission permitting the
selling of such securities without registration.
(b) Each Holder hereby agrees that any and all sales made by such Holder
(other than pursuant to Section 3), whether pursuant to a Shelf
Registration Statement, Rule 144 or any other exemption from the
registration requirements of the Securities Act, shall not exceed, in
the aggregate with all other Holders in any calendar quarter of the
Company, that number of shares set forth on Schedule A hereto with
respect to such calendar quarter; provided, that, in the event the
Shelf Registration Statement is not effective by May 15, 1999, and the
shares saleable under Schedule A during the period commencing on May
15, 1999 and ending on June 15, 1999 are not sold pursuant to Section
3 hereof, then such shares shall be added to the shares saleable in
the next calendar quarter pursuant to Schedule A; provided, however,
that commencing with the second calendar quarter of 2000, such number
of shares shall equal the greater of that number of shares specified
specified previously in this sentence and that number of shares equal
to 20% of the "Average Weekly Trading Volume" (as hereinafter defined)
for the four full calendar weeks immediately preceding the first day
of such calendar quarter. For purposes of the
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foregoing, "Average Weekly Trading Volume" shall be determined by
reviewing the trading volume for each week of the applicable four week
period, adding together the trading volume for the two weeks which
represent neither the greatest weekly volume nor the lowest weekly
volume in such four week period, and dividing such sum by 2. In
addition, all sales made by any Holder (other than pursuant to Section
3) shall only be effected through J.P. Morgan & Company or such other
underwriter which makes a market in the Common Stock which may be
designated by the Company. Furthermore, Schedule A shall be amended
(i) as and when any Additional Contingent Consideration is paid under
the Merger Agreement in Common Stock to increase the number of shares
saleable in such calendar quarter and the three succeeding calendar
quarters so that such Common Stock shall be equally divided over the
subsequent four quarters equally or (ii) to reflect any stock splits
or other similar corporate events.
Section 10. Transfer of Registration Rights. The rights to cause the Company
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to register Registrable Securities of a Holder and keep information
available granted to a Holder by the Company under Sections 2 and 3, may be
assigned by a Holder to any partner or shareholder of such Holder, to one
or more affiliated partnerships managed by such Holder, any other Holder,
to any "Affiliate" of the Holder; or to a transferee or assignee who
receives at least 50% of the Registrable Securities held by such Holder;
provided, that the Company is given written notice by the Holder at the
time of or within a reasonable time after said transfer, stating the name
and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being assigned, and that
said transferee or assignee agrees in writing to be bound by the terms and
provisions of this Agreement as if an original signatory thereto.
Section 11. Termination of Rights. This Agreement shall terminate at 5:00 p.m.
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Eastern time on March 31, 2001.
Section 12. Miscellaneous.
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(a) Amendments. This Agreement constitutes the entire agreement of the
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parties within respect to the subject matter hereof and may be amended
or modified only by a writing signed by the Company and the Holders.
The Holders hereby consent to future amendments to this Agreement that
permit future investors to be made parties hereto and to become
Holders of Registrable Securities.
(b) Counterparts. This Agreement may be executed in any number of
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counterparts, all of which shall constitute a single instrument.
(c) Notices, Etc. All notices and other communications required or
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permitted hereunder shall be in writing and may be sent initially by
facsimile transmission and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (i) if to a Holder, at such Holder's address set forth on
the books of the Company, or at such other address as such Holder
shall have furnished to the Company in writing, or (ii) if to any
other holder of any Registrable Securities, at such address as such
holder shall have furnished the Company in writing, or, until any such
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holder so furnishes an address to the Company, then to and at the
address of the last holder of such securities who has so furnished an
address to the Company, or (iii) if to the Company, one copy should be
sent to the Company's current address at 3 Park Avenue, New York, New
York 10019, or at such other address as the Company shall have
furnished to the Holders. All such notices shall be effective and
deemed duly given when received or when attempted delivery is refused.
(d) Non-Public Information. Any other provisions of this agreement to the
----------------------
contrary notwithstanding, the Company's obligation to file a
registration statement, or cause such registration statement to become
and remain effective, shall be suspended for a period not to exceed 60
days (and for periods not exceeding, in the aggregate, 120 days in any
24-month period) if there exists at the time material non-public
information relating to the Company which, in the reasonable opinion
of the Company, should not be disclosed.
(e) Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in
any manner affect or render illegal, invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be carried
out as if any such illegal, invalid or unenforceable provision were
not contained herein.
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<PAGE>
(f) Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of New York without regard to principles of conflict of
law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
EARTHWEB INC.
By:/s/ Murray Hidary
---------------------------------
Name: Murray Hidary
Title: Executive Vice President
Holders
/s/ Lloyd Linn
------------------------------------
Name: Lloyd Linn
/s/ Diane Rickert
------------------------------------
Name: Diane Rickert
13