Registration Rights Agreement - Open Market Inc. and Halifax Fund LP
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") is entered into as of
March 20, 2001 between Open Market, Inc., a Delaware corporation with offices at
One Wayside Road, Burlington, Massachusetts 01803 (the "COMPANY") and each of
the entities listed under "PURCHASERS" on the signature page hereto (each a
"PURCHASER" and collectively the "PURCHASERS"), each with offices at the address
listed under such Purchaser's name on Schedule I hereto.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase Agreement by and between the
Company and the Purchasers, dated as of March 20, 2001 (the "PURCHASE
AGREEMENT"), the Company has agreed to sell and issue to the Purchasers, and the
Purchasers have agreed to purchase from the Company (i) an aggregate of 5,000
shares of the Company's Series E Convertible Preferred Stock, liquidation
preference $1,000 per share (the "PREFERRED SHARES"), which Preferred Shares
shall be convertible into shares (the "COMMON SHARES") of the Company's common
stock, par value $.001 per share (the "COMMON STOCK");(ii) purchase warrants
(the "PURCHASE WARRANTS") to purchase up to 917,297 of shares of Common Stock
(the "PURCHASE WARRANT SHARES") and (iii) adjustment warrants (the "ADJUSTMENT
WARRANTS" and together with the Purchase Warrants, the "WARRANTS") to purchase
shares of Common Stock as set forth therein (the "ADJUSTMENT WARRANT SHARES",
and together with the Purchase Warrant Shares, the "WARRANT SHARES"); and
WHEREAS, pursuant to the terms of, and in partial consideration for,
the Purchasers' agreement to enter into the Purchase Agreement, the Company has
agreed to provide the Purchasers with certain registration rights with respect
to the Common Shares and Warrant Shares.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Purchase
Agreement and this Agreement, the Company and the Purchasers agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Purchase Agreement, the
Certificate of Designations for the Preferred Shares (the "CERTIFICATE") and the
Warrants. As used in this Agreement, the following terms shall have the
following respective meanings:
"APPROVED MARKET" shall have the meaning set forth in the Purchase
Agreement
"CLOSING" and "CLOSING DATE" shall have the meanings ascribed to such
terms in the Purchase Agreement.
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"COMMISSION" or "SEC" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"COMMON SHARES" shall have the meaning ascribed to such term in the
first Whereas clause above.
"CONVERSION PRICE" shall have the meaning set forth in the Certificate.
"CONVERSION PRICE ADJUSTMENT" shall mean an adjustment to the
Conversion Price.
"CONVERSION VALUE" shall mean the value that a Holder would be entitled
to receive upon (i) conversion of the Preferred Shares at the Conversion Price
then in existence, without reference to paragraph (i) and (ii) of Section 5(j)
of the Certificate of Designations of the Preferred Shares but subject to the
limitation set forth in Section 3.12 of the Purchase Agreement, followed by (ii)
the subsequent sale of the Common Shares received thereby at the greater of (A)
the Fair Market Price for Shares of Common Stock in existence at the time of the
event triggering the right to redemption or (B) the greatest Fair Market Price
occurring after the date of the event triggering the right to redemption but on
or prior to the earlier of (x) the date of the closing of the redemption of the
Preferred Shares or (y) the 30th day following such triggering event.
"DELAY PAYMENT" shall mean a payment equal to 2% of the Liquidation
Preference per share multiplied by the number of Preferred Shares held by the
relevant Holder, except that with respect to a Delay Payment under Section
2(b)(i) below, such payment shall equal 1% of the Liquidation Preference for the
first 30-day period (or portion thereof) such payment is applicable, and 2% for
each subsequent 30-day period (or portion thereof) such payment is applicable.
"EFFECTIVENESS DEADLINE" shall have the meaning set forth in Section
2(a).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" shall have the meaning set forth in the Warrants.
"FAIR MARKET PRICE" shall have the meaning ascribed to such term in the
Purchase Warrants.
"HOLDER" and "HOLDERS" shall mean the Purchaser or the Purchasers,
respectively, and any transferee of the Preferred Shares, Warrants, Common
Shares, or Registrable Securities which have not been sold to the public to whom
the registration rights conferred by this Agreement have been transferred in
compliance with this Agreement.
"PREFERRED SHARES" shall have the meaning ascribed to such term in the
First Whereas clause.
"INTERFERING EVENTS" shall have the meaning set forth in Section 2(b).
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"LIQUIDATION PREFERENCE" shall have the meaning ascribed to such term
in Section 3 of the Certificate.
"PREMIUM REDEMPTION PRICE" shall mean the following:
(a) as to the Preferred Shares, the greater of (i) 120% of the
Liquidation Preference and (ii) the Conversion Value;
(b) as to the Warrants, 120% of the positive difference (if
any) between (i) the aggregate Exercise Price for the Warrant Shares covered by
the Warrants (without reference to the limitation contained in paragraphs (a)
and (b) of Section 17 of the Purchase Warrants or paragraphs (a) and (b) of
Section 13 of the Adjustment Warrants but subject to the limitation set forth in
Section 3.12 of the Purchase Agreement) and (ii) the number of underlying
Warrant Shares multiplied by the greater of (x) the Fair Market Price for shares
of Common Stock in existence at the time of the event triggering the right to
redemption or (y) the greatest Fair Market Price occurring after such triggering
event but on or prior to the earlier of (i) the date of the closing or the
redemption of the Warrant or (ii) the 30th day following such triggering event.
(c) as to the Common Shares or Warrant Shares, 120% of the
dollar amount which is the product of (i) the number of shares to be redeemed,
and (ii) the greater of (x) the Fair Market Price for shares of Common Stock in
existence at the time of the event triggering the right to redemption or (y) the
greatest Fair Market Price occurring after such triggering event but on or prior
to the earlier of (i) the date of the closing or the redemption of such Common
Shares or Warrant Shares, as the case may be or (ii) the 30th day following such
triggering event.
"REGISTRABLE SECURITIES" shall mean: (a) the Common Shares (issued or
issuable), the Warrant Shares (issued or issuable) and any shares of Common
Stock issued or issuable upon any stock split, stock dividend, recapitalization
or similar event with respect to the Common Shares or Warrant Shares; (b) any
securities issued or issuable to each Holder upon the conversion, exercise or
exchange of any Preferred Shares, Warrants, Common Shares or Warrant Shares; and
(c) any other security of the Company issued as a dividend or other distribution
with respect to, conversion or exchange of, or in replacement of, Registrable
Securities.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"REGISTRATION EXPENSES" shall mean all expenses to be incurred by the
Company in connection with each Holder's registration rights under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, "BLUE SKY"
fees and expenses, reasonable fees and disbursements of counsel to Holders
(using a single counsel selected by a majority in interest of the Holders) for a
"due diligence" examination of the Company
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and review of the Registration Statement and related documents, which shall in
no event exceed $5,000 and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company).
"REGISTRATION STATEMENT" shall have the meaning set forth in Section
2(a) herein.
"REGULATION D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"SECURITIES ACT" or "ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, all fees and
disbursements of counsel for Holders not included within "REGISTRATION EXPENSES"
and if the Holders engage a third party as an underwriter for the purpose of
distributing Registrable Securities on an underwritten basis, the fees and
expenses of such underwriting and any additional expenses of an accountant
incurred in order to obtain a "COMFORT LETTER."
"WARRANTS" shall have the meaning ascribed to such term in the first
Whereas clause.
"WARRANT SHARES" shall have the meaning ascribed to such term in the
first Whereas clause.
2. REGISTRATION REQUIREMENTS. The Company shall use its best efforts to
effect the registration of the Registrable Securities (including without
limitation the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable "BLUE SKY" or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act) as would permit or facilitate the sale or distribution of all
the Registrable Securities in the manner (including manner of sale) reasonably
requested by the Holder and in all U.S. jurisdictions. Such best efforts by the
Company shall include the following:
(a) The Company shall, as expeditiously as reasonably possible
after the Closing Date:
(i) But in any event by no later than 45 days after
the Closing Date, prepare and file a registration statement
with the Commission on Form S-3 under the Securities Act (or
in the event that the Company is ineligible to use such form,
such other form as the Company is eligible to use under the
Securities Act) registering the resale of the Registrable
Securities (such registration statement, including any
amendments or supplements thereto and prospectuses contained
therein, is referred to herein as the "REGISTRATION
STATEMENT"), which Registration Statement, to the extent
allowable under the Securities Act and the rules promulgated
thereunder (including Rule 416), shall state that such
Registration Statement also covers such number of additional
shares of Common Stock
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as may become issuable to prevent dilution resulting from
stock splits, stock dividends or similar events. The number of
shares of Common Stock initially included in such Registration
Statement shall be no less than the sum of (A) 200% of the sum
of the number of shares of Common Stock that as of the date of
filing would be issuable upon conversion of the Preferred
Shares plus (B) 100% of the shares of Common Stock that would
be issuable upon exercise of the Warrants in each case without
regard to any limitation on the Purchaser's ability to convert
or exercise such securities. The Company will use its best
efforts to respond to any Commission comments on the
registration statement within seven (7) business days of
receipt. The Company shall use its best efforts to cause such
Registration Statement to be declared effective as soon as
practicable, and in any event within 90 days of filing. If the
Registration Statement is not declared effective prior to the
earliest of (x) 120 days after the Closing Date, in the event
that the Registration Statement is not reviewed by the SEC,
(y) 140 days after the Closing Date, in the event that such
review takes place or (z) within 4 Business Days of the SEC
indicating it has no comments or no further comments, (the
"EFFECTIVENESS DEADLINE"), then the provisions of Section
2(b)(i) below shall apply. The Company shall provide Holders
and their legal counsel reasonable opportunity to review any
such Registration Statement or amendment or supplement thereto
prior to filing.
(ii) Prepare and file with the SEC such amendments
and supplements to such Registration Statement and the
prospectus used in connection with such Registration Statement
as may be necessary to comply with the provisions of the Act
with respect to the disposition of all securities covered by
such Registration Statement in accordance with the intended
methods of disposition by the seller thereof as set forth in
the Registration Statement and notify the Holders of the
filing and effectiveness of such Registration Statement and
any amendments or supplements.
(iii) After the registration, furnish to each Holder
such numbers of copies of a current prospectus conforming with
the requirements of the Act, copies of the Registration
Statement, any amendment or supplement thereto and any
documents incorporated by reference therein and such other
documents as such Holder may reasonably require in order to
facilitate the disposition of Registrable Securities owned by
such Holder.
(iv) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such
other securities or "BLUE SKY" laws of all U.S. jurisdictions;
PROVIDED that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such
states or jurisdictions.
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(v) Notify each Holder promptly of the happening of
any event as a result of which the prospectus (including any
supplements thereto or thereof and any information
incorporated or deemed to be incorporated by reference
therein) included in such Registration Statement, as then in
effect, includes an untrue statement of material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing, use its best efforts
to promptly update and/or correct such prospectus.
(vi) Notify each Holder promptly of the issuance by
the Commission or any state securities commission or agency of
any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use its best efforts to
prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest
possible time.
(vii) Permit a single firm of counsel, designated as
Holders' counsel by the Holders of a majority of the
Registrable Securities included in the Registration Statement,
to review the Registration Statement and all amendments and
supplements thereto within a reasonable period of time prior
to each filing, and shall not file any document in a form to
which such counsel reasonably objects; provided, however, that
any delay in the filing to the extent due to such counsel's
objection shall not be counted when determining the applicable
remedies in Section 2(b) below.
(viii) Use its best efforts to list the Registrable
Securities covered by such Registration Statement with all
securities exchange(s) and/or markets on which the Common
Stock is then listed and prepare and file any required filings
with the National Association of Securities Dealers, Inc. or
any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to
enable Holders to avail themselves of the prospectus delivery
mechanism set forth in Rule 153 (or successor thereto) under
the Act.
(x) Notify the Holders' counsel of receipt of any
comments from the SEC on the Registration Statement or of an
SEC decision not to review the Registration Statement.
(b) Set forth below in this Section 2(b) are (I) events that
may arise that the Purchasers consider will interfere with the full enjoyment of
their rights under the Preferred Shares, Warrants, the Registrable Securities,
the Purchase Agreement and this Agreement (the "INTERFERING EVENTS"), and (II)
certain remedies applicable in each of these events.
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Paragraphs (i) through (iv) of this Section 2(b) describe the
Interfering Events, provide a remedy to the Purchasers if an
Interfering Event occurs and provide that the Purchasers may
require that the Company redeem outstanding Preferred Shares,
Warrants, or Registrable Securities at a specified price if
certain Interfering Events are not timely cured.
Paragraph (v) provides, INTER ALIA, that each Holder shall
have the option as to whether it would like to receive any
payment required as a remedy in the case of certain of the
Interfering Events in cash or shares of Common Stock.
Paragraph (vi) provides, INTER ALIA, that if payments required
as the remedy in the case of certain of the Interfering Events
are not paid when due, the Company may be required by the
Purchasers to redeem outstanding Preferred Shares, Warrants,
or Registrable Securities at a specified price.
Paragraph (viii) provides, INTER ALIA, that the Purchasers
have the right to specific performance.
The preceding paragraphs in this Section 2(b) are meant to serve only
as an introduction to this Section 2(b), are for convenience only, and are not
to be considered in applying, construing or interpreting this Section 2(b).
(i) DELAY IN EFFECTIVENESS OF REGISTRATION STATEMENT.
In the event that the Registration Statement
has not been declared effective by the Effectiveness
Deadline, then the Conversion Price shall be reduced
by 2% for the first 30 day period (or portion
thereof) following the Effectiveness Deadline and an
additional 1.5% for each succeeding 30-day period (or
portion thereof) during which the Registration
Statement has not been declared effective. (For
example commencing with the 61st day following the
Effectiveness Deadline if the Registration Statement
is still not effective, the Conversion Price shall be
reduced by 5% from what it would have been in the
Certificate.) In the event that the Registration
Statement has not been declared effective within 30
days of the Effectiveness Deadline, then each Holder
shall, in addition, receive a Delay Payment for each
30-day period (or portion thereof) thereafter during
which the Registration Statement has not been
declared effective.
(ii) NO LISTING.
(A) In the event that the Company fails,
refuses or is unable to cause the Registrable
Securities covered by the Registration Statement to
be listed with the applicable Approved Markets and
each other securities exchange and market on which
the Common Stock is then traded at all times during
the period
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("Listing Period") commencing the earlier of the
effective date of the Registration Statement or the
90th day following the Closing Date, and continuing
thereafter for so long as the Preferred Shares or
Warrants are outstanding, then the Company shall pay
in cash or Common Stock, as provided in Section
2(b)(v), to each Holder a Delay Payment for each
30-day period (or portion thereof) during the Listing
Period from and after such failure, refusal or
inability to so list the Registrable Securities until
the Registrable Securities are so listed.
(B) In the event that shares of Common Stock
of the Company are delisted from the applicable
Approved Markets at any time following the Closing
Date and remain delisted for 5 consecutive business
days, then at the option of each Holder and to the
extent such Holder so elects, the Company shall on 5
business days notice pay in cash or Common Stock (as
provided in Section 2(b)(v)) to such Holder a Delay
Payment for each 30-day period (or portion thereof)
that the shares are delisted; PROVIDED, however, that
such Holder may revoke such request at any time prior
to receipt of payment of such Delay Payments.
(iii) BLACKOUT PERIODS. In the event any Holder is
unable to sell Registrable Securities under the Registration
Statement for more than (A) fourteen (14) consecutive days or
(B) an aggregate of forty-five (45) days in any 12 month
period ("Suspension Grace Period"), including without
limitation, any suspension or stop order with respect to the
Registration Statement or the fact that an event has occurred
as a result of which the prospectus (including any supplements
thereto) included in such Registration Statement then in
effect includes an untrue statement of material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing, or the number of
shares of Common Stock covered by the Registration Statement
is insufficient at such time to make such sales (a
"Blackout"), then the Company shall pay in cash or Common
Stock (as provided in Section 2(b)(v)) to each Holder its
pro-rata portion of $100,000 for the first five-day period (or
portion thereof) from and after the expiration of the
Suspension Grace Period, during which a Blackout exists.
Thereafter, if a Blackout exists, a Holder shall have the
right but not the obligation, until the later of (A) the sixth
month following the Suspension Grace Period or (B) one-year
anniversary of the Closing Date (the "Blackout Redemption
Period"), to elect to have the Company redeem its Preferred
Shares, Warrants, Common Shares and Warrant Shares at the
price equal to the Premium Redemption Price. Following the
Blackout Redemption Period, if a Blackout exists, each Holder
shall be entitled to its pro-rata portion of $100,000 for each
30-day period (or portion thereof) during which a Blackout
exists.
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(iv) CONVERSION OR EXERCISE DEFICIENCY; PREMIUM PRICE
REDEMPTION FOR CONVERSION OR EXERCISE DEFICIENCY. In the event
that: (x) the Company does not have a sufficient number of
Common Shares available to satisfy the Company's obligations
to any Holder upon receipt of a Conversion Notice (as defined
in the Certificate) or is otherwise unable or unwilling to
issue such Common Shares in accordance with the terms of the
Certificate and Article 5 of the Purchase Agreement for any
reason after receipt of a Conversion Notice or is unable or
unwilling to deliver the applicable number of Common Shares on
a timely basis with respect to a Mandatory Conversion Notice
(as defined in the Certificate) or on the Redemption Date (as
defined in the Certificate) if a redemption is being effected
in Common Shares or (y) the Company does not have a sufficient
number of Warrant Shares available to satisfy the Company"
obligations to any Holder upon receipt of a Notice of Exercise
(as defined in the Warrants) or is otherwise unable or
unwilling to issue such Warrant Shares in accordance with the
terms of the Warrants and Article 5 of the Purchase Agreement
for any reason after receipt of such Notice of Exercise, or is
unable or unwilling to deliver the applicable number of
Warrant Shares in accordance with the terms of the Warrant,
following the issuance by the Company of an Issuer Notice (as
defined in the Warrants), then:
(A) The Company shall pay in cash or Common
Stock (as provided in Section 2(b)(v)) to each Holder
a Delay Payment for each 30-day period (or portion
thereof) that the Company fails or refuses to issue
Common Shares in accordance with the terms of the
Certificate and Article 5 of the Purchase Agreement,
which Delay Payment shall not exceed the maximum
percentage permitted by law; and
(B) At any time (i) 5 days after the failure
of the Company to have a sufficient number of Common
Shares reserved and available or (ii) 10 days after
delivery of a written notice that the Company has
failed to comply with the delivery requirements for
Common Shares set forth above by any Holder (provided
that such failure or failures shall, in the aggregate
with respect to such notices, be with respect to the
delivery of certificates representing at least
100,000 shares of Common Stock (as such number may be
subsequently adjusted for stock splits, reverse
splits, stock dividends, consolidations and
reclassification)), at the request of such Holder
pursuant to a redemption notice, the Company promptly
(1) shall purchase from such Holder, at a purchase
price equal to the Premium Redemption Price, the
number of Preferred Shares equal to such Holder's pro
rata share of the Deficiency (as such term is defined
below), if the failure to issue Common Shares results
from the lack of a sufficient number thereof and (2)
shall purchase all (or such portion as such Holder
may elect) of such
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Holder's Preferred Shares at such Premium Redemption
Price if the failure to issue Common Shares in
accordance with the Certificate and Article 5 of the
Purchase Agreement results from any other cause. The
"Deficiency" shall be equal to the aggregate
Liquidation Preference of Preferred Shares that would
not be able to be converted for Common Shares, due to
an insufficient number of Common Shares available, if
all the outstanding Preferred Shares were submitted
for conversion at the Conversion Price set forth in
the Preferred Shares as of the date such Deficiency
is determined. Any request by a Holder pursuant to
this paragraph (iv)(B) shall be revocable by that
Holder at any time prior to its receipt of the
Premium Redemption Price.
(C) In the case of Warrant Exercises, at any
time: (i) five days after failure of the Company to
have a sufficient number of Warrant Shares reserved
and available or (ii) 10 days after delivery of a
written notice by any Holder of the Company's failure
to comply with the delivery requirements for Warrant
Shares set forth above (provided that such failure or
failures shall, in the aggregate with respect to such
notices, be with respect to the delivery of
certificates representing at least 100,000 shares of
Common Stock (as such number may be adjusted for
stock splits, reverse splits, stock dividends and
reclassifications)), at the request of any Holder
pursuant to a redemption notice, the Company promptly
(1) shall purchase from such Holder, at a purchase
price equal to the Premium Redemption Price, the
amount of Warrants equal to such Holder's pro rata
share of the Warrant Deficiency (as such terms is
defined below), if the failure to issue Warrant
Shares results from lack of a sufficient number
thereof and (2) shall purchase all (or such portion
as such Holder may elect) of such Holder's Warrants
at such Premium Redemption Price if the failure to
issue Warrant Shares in accordance with the Warrants
and Article 5 of the Purchase Agreement results from
any other cause. The "Warrant Deficiency" shall be
equal to the amount of Warrant Shares that would not
be able to be exercised for Warrant Shares, due to an
insufficient number of Warrant Shares available, if
all the outstanding Warrants were submitted for
conversion at the Conversion Price set forth in the
Warrants as of the date of such Warrant Deficiency is
determined. Any request by a Holder pursuant to this
paragraph (iv)(C) shall be revocable by that Holder
at any time prior to its receipt of the Premium
Redemption Price.
(v) DELAY PAYMENT TERMS; STATUS OF UNPAID DELAY
PAYMENTS. All Delay Payments (which payments shall be pro rata
on a per diem basis for any period of less than 30 days)
required to be made in connection with the above provisions
shall be paid at any time upon demand, for the partial or full
calendar month occurring prior to that date. Such Delay
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Payments shall be payable in cash or Common Stock, as
determined by each Holder in its sole discretion. If the
Holder elects to be paid in Common Stock, the Holder shall be
entitled to that number of shares of Common Stock as shall
equal to the amount of such Delay Payment multiplied by a
fraction, the numerator of which is one and the denominator of
which is equal to the average of the Fair Market Price for
Shares of Common Stock for the three (3) business days prior
to, but not including, the date upon which such payments are
due. Unless the Company shall receive written notice to the
contrary from the respective Holder, the Delay Payments shall
be paid in cash. Until paid as required in this Agreement,
Delay Payments shall be deemed added to, and a part of, the
Liquidation Preference of a Holder's Preferred Shares.
(vi) PREMIUM PRICE REDEMPTION FOR DELAY PAYMENT
DEFAULTS. In the event that the Company fails or refuses to
pay any Delay Payment provided for in the foregoing paragraphs
(ii) through (v) within 5 business days of delivery by a
Holder of written Notice that such Delay Payments is due, at
any Holder's request and option, the Company shall purchase
all or a portion of the Preferred Shares, Warrants, Warrant
Shares and Common Shares held by such Holder (with Delay
Payments accruing through the date of such purchase), within
five (5) days of such request, at a purchase price equal to
the Premium Redemption Price (as defined above); PROVIDED that
such Holder may revoke such request at any time prior to
receipt of such payment of such purchase price. Until such
time as the Company purchases such Preferred Shares at the
request of such Holder pursuant to the preceding sentence, at
any Holder's request and option the Company shall as to such
Holder pay such amount by adding and including the amount of
such Delay Payment to the Liquidation Preference of a Holder's
Preferred Shares.
(vii) CUMULATIVE REMEDIES. Each Delay Payment
triggered by an Interfering Event provided for in the
foregoing paragraphs (ii) through (v) shall be in addition to
each other Delay Payment triggered by another Interfering
Event; PROVIDED, however, that in no event shall the Company
be obligated to pay to any Holder Delay Payments in an
aggregate amount greater than one Delay Payment for any 30-day
period (or portion thereof). Furthermore, a Holder may only
require the Company to effect a redemption if the event
triggering the right to redemption shall remain uncured at the
time the notice of such redemption is given. The Delay
Payments and mandatory redemptions provided for above are in
addition to and not in lieu or limitation of any other rights
the Holders may have at law, in equity or under the terms of
the Certificate, the Purchase Agreement, the Warrants or this
Agreement, including without limitation the right to specific
performance. Each Holder shall be entitled to specific
performance of any and all obligations of the Company in
connection with the registration rights of the Holders
hereunder.
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(viii) CERTAIN ACKNOWLEDGMENTS. The Company
acknowledges that any failure, refusal or inability by the
Company described in the foregoing paragraphs (i) through (iv)
and paragraph (vi) will cause the Holders to suffer damages in
an amount that will be difficult to ascertain, including
without limitation damages resulting from the loss of
liquidity in the Registrable Securities and the additional
investment risk in holding the Registrable Securities.
Accordingly, the parties agree that it is appropriate to
include in this Agreement the foregoing provisions for
Conversion and Exercise Price adjustments and the Delay
Payments and mandatory redemptions in order to compensate the
Holders for such damages. The parties acknowledge and agree
that the Conversion and Exercise Price adjustments and the
Delay Payments and mandatory redemptions set forth above
represent the parties' good faith effort to quantify such
damages and, as such, agree that the form and amount of such
adjustments, Delay Payments and mandatory redemptions are
reasonable and will not constitute a penalty. The parties
agree that the provisions of this clause (viii) consist of
certain acknowledgments and agreements concerning the remedies
of the Holders set forth in clauses (i) through (vi) and
paragraph (vii) of this paragraph; nothing in this clause
(viii) imposes any additional default payments and mandatory
redemptions for violations under this Agreement.
(ix) LIMITATION ON REDEMPTIONS AND DELAY PAYMENTS.
Notwithstanding anything in the foregoing to the contrary, no
Holder may effect any redemptions hereunder or be entitled to
receive any Delay Payments after such time as (x) a Change of
Control Transaction (as defined in the Certificate) shall have
occurred and (y) no Preferred Shares shall be outstanding.
(c) The Company shall enter into such customary agreements for
underwritten secondary offerings and take all such other reasonable actions
reasonably requested by the Holders in connection therewith in order to expedite
or facilitate the disposition of such Registrable Securities. In the event that
the offering in which the Registrable Securities are to be sold is deemed to be
an underwritten offering or any Holder selling Registrable Securities is deemed
to be an underwriter, the Company shall:
(i) make such representations and warranties to the
Holders, in form, substance and scope as are customarily made
by issuers to underwriters in secondary offerings;
(ii) cause to be delivered to the sellers of
Registrable Securities, if any, opinions of independent
counsel to the Company, on and dated as of the effective day
(or in the case of an underwritten offering, dated the date of
delivery of any Registrable Securities sold pursuant thereto)
of the Registration Statement, and within ninety (90) days
following the end of each fiscal year thereafter, which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to
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the Holders, and their counsel and covering, without
limitation, such matters as the due authorization and issuance
of the securities being registered and compliance with
securities laws by the Company in connection with the
authorization, issuance and registration thereof and other
matters that are customarily given to underwriters in
underwritten offerings, addressed to the Holders and each
underwriter, if any.
(iii) cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case
of an underwritten offering, at the time of delivery of any
Registrable Securities sold pursuant thereto), and at the
beginning of each fiscal year following a year during which
the Company's independent certified public accountants shall
have reviewed any of the Company's books or records, a
"COMFORT" letter from the Company's independent certified
public accountants addressed to the Holders, if any, stating
that such accountants are independent public accountants
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder, and otherwise in
customary form and covering such financial and accounting
matters as are customarily covered by letters of the
independent certified public accountants delivered in
connection with secondary offerings; such accountants shall
have undertaken in each such letter to update the same during
each such fiscal year in which such books or records are being
reviewed so that each such letter shall remain current,
correct and complete throughout such fiscal year; and each
such letter and update thereof, if any, shall be reasonably
satisfactory to the Holders.
(iv) deliver such documents and certificates as may
be reasonably requested by the Holders of the Registrable
Securities being sold, if any, to evidence compliance with
clause (i) above and with any customary conditions contained
in the underwriting agreement, if any; and
(v) deliver to the Holders on the effective day of
the Registration Statement, and at the beginning of each
fiscal quarter thereafter, a certificate in form and substance
as shall be reasonably satisfactory to the Holders, executed
by an executive officer of the Company and to the effect that
all the representations and warranties of the Company
contained in the Purchase Agreement are still true and correct
except as disclosed in such certificate; the Company shall, as
to each such certificate delivered at the beginning of each
fiscal quarter, update or cause to be updated each such
certificate during such quarter so that it shall remain
current, complete and correct throughout such quarter; and
such updates received by the Holders during such quarter, if
any, shall have been reasonably satisfactory to the Holders.
(d) The Company shall make available for inspection, upon
reasonable written notice and during regular business hours, by the
Holders, representative(s) of all the Holders together, and any
attorney or accountant retained by any Holder, all financial
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<PAGE>
and other records customary for purposes of the Holders' due diligence
examination of the Company and review of any Registration Statement, all SEC
Documents (as defined in the Purchase Agreement) filed subsequent to the
Closing, pertinent corporate documents and properties of the Company, and use
its reasonable best efforts to cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, attorney or accountant in connection with such Registration
Statement, provided that such parties agree to keep such information
confidential.
(e) The Company shall file a Registration Statement with
respect to any newly authorized and/or reserved shares, with respect to its
obligation to reserve or register Registrable Securities, within 30 days of any
corporate action authorizing or reserving same and shall file a Registration
Statement with respect to additional Registrable Securities within 30 days after
such time as the existing Registration Statement ceases to cover all Registrable
Securities and shall use its best efforts to cause, in either case, such
Registration Statement to become effective within sixty (60) days of such
corporate action or such occurrence, as the case may be. If the Holders become
entitled, pursuant to an event described in the definition of Registrable
Securities, to receive any securities in respect of Registrable Securities that
were already included in a Registration Statement, subsequent to the date such
Registration Statement is declared effective, and the Company is unable under
the securities laws to add such securities to the then effective Registration
Statement, the Company shall promptly file, in accordance with the procedures
set forth herein, an additional Registration Statement with respect to such
newly Registrable Securities. The Company shall use its best efforts to (i)
cause any such additional Registration Statement, when filed, to become
effective under the Securities Act, and (ii) keep such additional Registration
Statement effective during the period described in Section 5 below. All of the
registration rights and remedies under this Agreement shall apply to the
registration of such newly reserved shares and such new Registrable Securities,
including without limitation the remedy provisions contained in Section 2(b)
herein.
3. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance with registration
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses of a Holder shall be borne by such Holder.
4. REGISTRATION ON FORM S-3; OTHER FORMS. The Company shall use its
best efforts to qualify for registration on Form S-3 or any comparable or
successor form or forms, or in the event that the Company is ineligible to use
such form, such form as the Company is eligible to use under the Securities Act.
5. REGISTRATION PERIOD. In the case of the registration effected by the
Company pursuant to this Agreement, the Company will use its best efforts to
keep such registration effective until the later of (i) such time as sales are
permitted of all Registrable Securities without registration under Rule 144(k)
and (ii) such time as no Warrants or Preferred Shares remain outstanding.
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6. INDEMNIFICATION.
(a) THE COMPANY INDEMNITY. The Company will indemnify each
Holder, each of its officers, directors and partners, and each person
controlling each Holder, within the meaning of Section 15 of the Securities Act
and the rules and regulations thereunder with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls, within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder, any
underwriter, against all claims, losses, 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 prospectus, offering
circular or other document (including any related registration statement,
notification or the like) 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, in light of the circumstances when made, not misleading, or any
violation by the Company of the Securities Act or any state securities law or in
either case, any rule or regulation thereunder 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 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 legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to a Holder to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by such Holder or the underwriter (if any) therefor and
stated to be specifically for use therein. The indemnity agreement contained in
this Section 6(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent will not be unreasonably withheld).
(b) HOLDER INDEMNITY. Each Holder will, severally and not
jointly, if Registrable Securities held by it are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors, officers, partners, and 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 the rules and regulations
thereunder, each other Holder (if any), and each of their officers, directors
and partners, and each person controlling such other Holder(s), against all
claims, losses, 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 document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statement therein not misleading, and will reimburse the Company and such other
Holder(s) and their directors, officers and partners, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating and defending any such claim, loss, damage, liability or
action, in each
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<PAGE>
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 document in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein, and
provided that the maximum amount for which such Holder shall be liable under
this indemnity shall not exceed the net proceeds received by such Holder from
the sale of the Registrable Securities. The indemnity agreement contained in
this Section 6(b) shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld).
(c) PROCEDURE. 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 claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, 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 under this Article
except to the extent that the Indemnifying Party is materially and adversely
affected by such failure to provide notice. 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 to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
7. CONTRIBUTION. If the indemnification provided for in Section 6
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying each of such Indemnified Parties, shall contribute to the amount
paid or payable by each such Indemnified Party as a result of such losses,
claims, damages or liabilities as between the Company on the one hand and any
Holder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of such Holder in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of any Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by such
Holder.
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In no event shall the obligation of any Indemnifying Party to
contribute under this Section 7 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 6(a) or 6(b) hereof had been
available under the circumstances.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Holders or the underwriters 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 immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Holder, the net proceeds received by such Holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the total price at
which the Registrable Securities purchased by it and distributed to the public
were offered to the public exceeds, in any such case, the amount of any damages
that such Holder or underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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.
8. SURVIVAL. The indemnity and contribution agreements contained in
Sections 6 and 7 and the representations and warranties of the Company referred
to in Section 2(d)(i) shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement or the Purchase Agreement or
any underwriting agreement, (ii) any investigation made by or on behalf of any
Indemnified Party or by or on behalf of the Company, and (iii) the consummation
of the sale or successive resales of the Registrable Securities.
9. INFORMATION BY HOLDERS. Each Holder shall reasonably promptly
furnish to the Company such information regarding such Holder and the
distribution and/or sale proposed by such Holder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement. The
intended method or methods of disposition and/or sale (Plan of Distribution) of
such securities as so provided by such Purchaser shall be included without
alteration in the Registration Statement covering the Registrable Securities and
shall not be changed without written consent of such Holder, except that such
Holder may not require an intended method of disposition which violates
applicable securities law.
10. NASDAQ LIMIT ON STOCK ISSUANCES. This Agreement is subject to
Section 3.12 of the Purchase Agreement.
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11. REPLACEMENT CERTIFICATES. The certificate(s) representing the
Common Shares held by the Purchaser (or then Holder) may be exchanged by the
Purchaser (or such Holder) at any time and from time to time for certificates
with different denominations representing an equal aggregate number of Common
Shares, as reasonably requested by the Purchaser (or such Holder) upon
surrendering the same. No service charge will be made for such registration or
transfer or exchange.
12. TRANSFER OR ASSIGNMENT. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The rights granted to the Purchasers by
the Company under this Agreement to cause the Company to register Registrable
Securities may be transferred or assigned (in whole or in part) to a transferee
or assignee of Preferred Shares, Warrants or Registrable Securities, and all
other rights granted to the Purchasers by the Company hereunder may be
transferred or assigned to any transferee or assignee of any Preferred Shares,
Warrants or Registrable Securities; provided in each case that: the Company must
be given written notice by the such Purchaser at the time of or within a
reasonable time after said transfer or assignment, stating the name and address
of said transferee or assignee and identifying the securities with respect to
which such registration rights are being transferred or assigned; and FURTHER
PROVIDED that the transferee or assignee of such rights agrees in writing to be
bound by the provisions of this Agreement.
13. MISCELLANEOUS.
(a) REMEDIES. The Company and the Purchasers acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof, this being in addition to any other remedy to which
any of them may be entitled by law or equity.
(b) JURISDICTION. THE COMPANY AND EACH OF THE PURCHASERS (I)
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT, THE NEW YORK STATE COURTS AND OTHER COURTS OF THE UNITED STATES
SITTING IN NEW YORK COUNTY, NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND (II) HEREBY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUCH SUIT ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER. THE COMPANY AND EACH OF THE
PURCHASERS CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR
NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL
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CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING IN
THIS PARAGRAPH SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
(c) NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing by facsimile, mail or
personal delivery and shall be effective upon actual receipt of such notice. The
addresses for such communications shall be:
to the Company:
One Wayside Road
Burlington, Massachusetts 01803
Phone: (781) 359-3000
Facsimile: (781) 359-8111
Attention: President
with copies to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Phone: (617) 526-6000
Facsimile: (617) 526-5000
Attention: John Chory
to the Purchasers:
c/o The Palladin Group, L.P.
195 Maplewood Avenue
Maplewood, New Jersey 07040
Phone: (973) 313-6400
Fax:(973) 313-6494
Attention: Maurice Hryshko
with copies to:
Kleinberg, Kaplan, Wolff & Cohen, P.C.
551 Fifth Avenue, 18th Floor
New York, New York 10176
Attention: Lawrence D. Hui, Esq.
Phone: (212) 986-6000
Facsimile: (212) 986-8866
Any party hereto may from time to time change its address for notices
by giving at least 10 days' written notice of such changed address to the other
parties hereto.
(d) WAIVERS. No waiver by any party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or
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requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter. The representations and warranties and
the agreements and covenants of the Company and each Purchaser contained herein
shall survive the Closing.
(e) EXECUTION. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart.
(f) PUBLICITY. The Company agrees that it will not disclose,
and will not include in any public announcement, the name of any Purchaser
without its express written approval, unless and until such disclosure is
required by law or applicable regulation, and then only to the extent of such
requirement. The Company agrees to deliver a copy of any public announcement
regarding the matters covered by this Agreement or any agreement or document
executed herewith to each Purchaser and any public announcement including the
name of an Purchaser to such Purchaser, prior to the publication of such
announcements; provided, however, that the foregoing requirement shall be deemed
satisfied if the Purchasers shall have had the opportunity to review the first
detailed description of such matters.
(g) NO PIGGYBACK ON REGISTRATION. Except as set forth on
Schedule 3.17 to the Purchase Agreement, neither the Company nor any of its
security holders (and other than the Holders in such capacity pursuant hereto)
may include securities of the Company in the Registration Statement other than
the Registrable Securities, and the Company shall not after the date hereof
enter into any agreement providing any such right to any of its security
holders.
(h) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, the Certificate, the Warrants and the agreements and
documents contemplated hereby and thereby, contains the entire understanding and
agreement of the parties, and may not be modified or terminated except by a
written agreement signed by both parties.
(i) GOVERNING LAW. THIS AGREEMENT AND THE VALIDITY AND
PERFORMANCE OF THE TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY IN SUCH STATE.
(j) SEVERABILITY. The parties acknowledge and agree that the
Purchasers are not agents, affiliates or partners of each other, that all
representations, warranties, covenants and agreements of the Purchasers
hereunder are several and not joint, that no Purchaser shall have any
responsibility or liability for the representations, warrants, agreements, acts
or omissions of any other Purchaser, and that any rights granted to "PURCHASERS"
hereunder shall be enforceable by each Purchaser hereunder.
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(k) JURY TRIAL. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL
BY JURY.
(l) TITLES. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
(m) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of at least a majority of the then issued or issuable
Registrable Securities; PROVIDED, HOWEVER, that, for the purposes of this
sentence, Registrable Securities that are owned, directly or indirectly.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
OPEN MARKET, INC.
By: /s/ Edward Durkin
---------------------------------
Name: Edward Durkin
Title: Chief Financial Officer
PURCHASERS:
HALIFAX FUND, L.P.
By: /s/ Maurice Hryshko
---------------------------------
Name: Maurice Hryshko
Title: Counsel
The Palladin Group, L.P.,
as Investment Adviser
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
<PAGE>
SCHEDULE I
PURCHASER
Halifax Fund, L.P.
c/o The Palladin Group, L.P.
195 Maplewood Avenue
Maplewood, New Jersey 07040