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Exhibit 10.2
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made as of September
__, 2000, by and among eCollege.com, a Delaware corporation (the "Company") and
Blumenstein/Thorne Information Partners I, L.P., a Delaware limited liability
company (the "Investor").
AGREEMENT
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NOW, THEREFORE, in consideration of mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions.
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"Common Stock" means the common stock of the Company, par value $0.01.
"Option" means the stock option granted by the Company to the Investor
on July 18, 2000 for 1,000,000 shares of the Company's Common Stock.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, an unincorporated organization or a governmental entity or
any department, agency or political subdivision thereof.
"Registrable Securities" means (i) any Common Stock issued upon
exercise of the Option and (ii) any Common Stock issued or issuable with respect
to the securities referred to in clause (i) by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities when they
have been distributed to the public pursuant to an offering registered under the
Securities Act of 1933, as amended (the "Securities Act") or sold to the public
through a broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force). For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
2. Piggyback Registrations.
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A. Right to Piggyback. Whenever the Company proposes to register
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any of its Common Stock under the Securities Act of 1933, as amended from time
to time (the "Securities Act") and the registration form to be used may be used
for the registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice. These rights to Piggyback Registration expire on the
third anniversary of the date hereof.
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B. Piggyback Expenses. The Registration Expenses (as defined
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herein) of the holders of Registrable Securities in all Piggyback Registrations
will be paid by the Company in accordance with Section 5 hereof.
C. Priority on Primary Registrations. If a Piggyback Registration
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is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such registration (i)
first, the securities the Company proposes to sell on its own behalf, and, if
additional shares can be sold in the opinion of the managing underwriters, (ii)
second, the Registrable Securities, as that term is defined in the Amended and
Restated Registration Agreement entered into by and among the Company and
certain of its stockholders on December 21, 1998, requested to be included in
such registration, pro rata among the holders of such Registrable Securities on
the basis of the number of shares of Registrable Securities owned by each such
holder, calculated as if such shares had been converted at such time to Common
Stock, (iii) third, the Registrable Securities, as that term is defined in this
Agreement, requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares of
Registrable Securities owned by each such holder and (iv) fourth, other
securities requested to be included in such registration.
D. Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities (other than a Short-Form Registration), and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the
Registrable Securities, as that term is defined in the Amended and Restated
Registration Agreement entered into by and among the Company and certain of its
stockholders on December 21, 1998, requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares of Registrable Securities owned by each such
holder, calculated as if such shares had been converted at such time to Common
Stock, (ii) second, the Registrable Securities, as that term is defined in this
Agreement, requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares of
Registrable Securities owned by each such holder and (iii) third, other
securities requested or permitted to be included in such registration.
E. Short-Form Registrations.
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(1) Requests for Registration. If, after the Company has
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executed a Piggyback Registration in which the holders of two-thirds of the
Registrable Securities requested inclusion of Registrable Securities pursuant to
Section 2(A) hereof, any one holder of Registrable Securities continues to hold
at least 500,000 shares of Registrable Securities (the "Remaining Registrable
Securities") due to the provisions of Section 2(C) or 2(D) hereof, the holder of
the Remaining Registrable Securities may request registration of all or part of
the Remaining Registrable Securities on Form S-3, or any similar short-form
registration then available to the Company, provided that the anticipated
aggregate offering price of the
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Remaining Registrable Securities to the public for any such registration exceeds
$1,000,000 ("Short-Form Registrations") and the Company has qualified to conduct
a registration on Form S-3. The Company will use its best efforts to qualify and
remain qualified to conduct registrations on Form S-3. Each request for a Short-
Form Registration shall specify the approximate number of Remaining Registrable
Securities requested to be registered and the anticipated per share price range
for such offering.
(2) Restrictions on Short-Form Registrations. The
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Company will not be obligated to effect any Short-Form Registration under this
Section 2:
a. after the Company has effected one (1) such
registration and such registration has been declared or ordered effective by the
Securities and Exchange Commission;
b. for a sixty (60) day period, if the Board of
Directors makes a determination pursuant to Section 2(E)(5) of this Agreement
that such registration would be seriously detrimental to the Company and its
stockholders, provided, however, that the Board of Directors may not delay such
registration pursuant to this Section 2(E)(2)(b) more than two times in any
twelve (12) month period; and
c. within 60 days prior to or 180 days following
the effective date of any registration under the Securities Act pertaining to
securities of the Company.
(3) Selection of Underwriters. For any Short-Form
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Registration under this Section 2, the holders of the Remaining Registrable
Securities will have the right to select the investment banker(s) and manager(s)
to administer the offering, if such offering is underwritten, subject to the
approval of the Company, which approval will not be unreasonably withheld.
(4) Demand Registration Expenses. The Registration
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Expenses (as defined herein) of the holder of the Remaining Registrable
Securities in all Short-Form Registrations will be paid by the Company in
accordance with Section 5 hereof.
(5) Registration Delay. Anything in this Section 2 to
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the contrary notwithstanding, the Company may not defer or delay Short-Form
Registrations under this Section 2 for more than two 60-day periods in any 12-
month period. The Company may engage in such delays only where its Board of
Directors has determined, in its good faith judgment, that such Short-Form
Registration would be seriously detrimental to the Company and its stockholders.
If the Company makes such a determination of detriment warranting a delay in
Short-Form Registration, prior written notice thereof shall be duly provided to
the holder of the Remaining Registrable Securities.
F. Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to this
Section 2, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or
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holders of such securities, until a period of at least 90 days has elapsed from
the effective date of such previous registration.
3. Holdback Agreements.
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A. Each holder of Registrable Securities agrees not to effect
any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Short-Form
Registration or any underwritten Piggyback Registration in which any Registrable
Securities are included (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree.
B. The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Short-Form Registration or any underwritten Piggyback Registration (except as
part of such underwritten registration or pursuant to registrations on Form S-8
or any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) to cause each holder of its equity securities
(or any securities convertible into or exchangeable or exercisable for such
equity securities) purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
A. prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
holders of two-thirds of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
will be subject to the review and comments of such counsel);
B. prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
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C. furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities;
D. use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
E. notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
F. cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on The Nasdaq Stock Market ("Nasdaq")
and, if listed on Nasdaq, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statement as a Nasdaq
National Market security within the meaning of Rule 11Aa2-I promulgated pursuant
to the Exchange Act or, failing that, to secure Nasdaq authorization for such
Registrable Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with Nasdaq with
respect to such Registrable Securities;
G. provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
H. enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
two-thirds of the Registrable Securities or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
I. make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information
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reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement; provided that upon the
reasonable request of the Company, any Person to whom any proprietary
information is made available shall agree to maintain the confidentiality of
such proprietary information, except if disclosure is required by judicial
decree or applicable law or such proprietary information otherwise becomes
publicly available;
J. otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158 thereunder;
K. permit any holder of Registrable Securities, which holder
might be deemed to be an underwriter or controlling Person of the Company (i) to
review and comment on the registration or comparable statement to be filed with
the Securities and Exchange Commission, and all preliminary versions thereof,
(ii) to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such holder and its counsel should
be included therein in order to reduce the risk that such holder may be deemed
to be an underwriter or a controlling Person of the Company, or to reduce the
risk and potential liability associated therewith in the event that such holder
is deemed to be an underwriter or controlling Person of the Company (including,
without limitation, that the holding by such holder of such securities is not to
be construed as a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such holder will assist in meeting any future financial requirements of the
Company), provided that such material does not contain a material misstatement
or omission and (iii) in the event that reference to such holder by name or
otherwise is not required by the Securities Act or any similar Federal statute
then in force, the deletion of any reference to such holder (provided that such
holder shall furnish to the Company an opinion of counsel to such effect, which
opinion shall be reasonably satisfactory to the Company);
L. use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
M. in any underwritten offering obtain a "cold comfort" letter
and updates thereof from the Company's independent public accountants in
customary form and covering such matters of the type customarily covered by cold
comfort letters as the holders of a majority of the Registrable Securities being
sold reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement); and
N. in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its best efforts promptly to obtain the
withdrawal of such order.
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O. make such representations and warranties to the holders of
Registrable Securities and the underwriters, if any, in form, substance, and
scope as are customarily made by issuers to underwriters in underwritten
offerings in customary form and consistent with then-current market practice;
P. obtain opinions of counsel to the Company which counsel and
opinions (in form, scope, and substance) shall be reasonably satisfactory to the
managing underwriters, if any, addressed to the underwriters, if any, in
customary form covering the matters customarily covered in opinions requested in
primary underwritten offerings and such other matters as may be reasonably
requested by such underwriters;
Q. of an underwriting agreement is entered into, cause the same
to set forth in full the indemnification provisions and procedures substantially
to the effect set forth in Section 6 hereof with respect to all parties to be
indemnified pursuant to said Section; and
R. deliver such documents and certificates as may be reasonably
requested by the holders of at least 50% of Registrable Securities being sold or
the managing underwriters, if any, to evidence compliance with Section E above
and with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
5. Registration Expense.
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A. All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne by the Company. Registration Expenses
shall also include the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on Nasdaq.
B. In connection with each Short-Form Registration and each
Piggyback Registration, the Company will reimburse the holders of the
Registrable Securities for the reasonable fees and disbursements of one counsel
chosen by the holders of two-thirds of the Registrable Securities covered by
such registration.
C. Each holder of securities included in any registration
hereunder will pay any underwriting discounts and commissions incurred upon the
sale of such securities.
6. Indemnification.
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A. The Company agrees to indemnify and hold harmless, to the
extent permitted by law, each holder of Registrable Securities, its officers,
directors, employees and
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agents and each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Investor.
B. In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify and hold
harmless the Company, its directors, officers, employees and agents and each
Person who controls the Company (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder and is not cured in a timely manner; provided that the obligation to
indemnify will be individual to each holder and will be limited to the amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
C. Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in the reasonable judgment of
such indemnified party a conflict of interest between such indemnified and
indemnifying parties exists with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party. If such defense is assumed, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of legal counsel to any
indemnified party a conflict of interest exists between such indemnified party
and any other of such indemnified parties with respect to such claim.
D. The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the
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transfer of securities. The Company also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party in
the event the Company's indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may
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participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities shall be required to make any representations
or warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
8. Miscellaneous.
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A. No Inconsistent Agreements. From and after the date hereof
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the Company shall not enter into any agreement granting any holder or
prospective holder of any securities of the Company registration rights with
respect to such securities unless such new registration rights are subordinate
to, or otherwise do not adversely affect the rights of the holders granted
hereunder. The Company represents and warrants that the rights granted to the
holders of Registrable Securities hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
B. Adjustments Affecting Registrable Securities. The Company
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will not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would adversely affect the marketability of
such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
C. Remedies Enforcement. Governing Law, Venue.
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(1) Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that (i) money damages may not be an adequate remedy for any breach
of the provisions of this Agreement; and (ii) any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement; and (iii) each party hereby waives the defense in
any action for specific performance that a remedy at law would be adequate.
(2) All questions concerning the relative rights of the
Company and its shareholders and the construction, validity and interpretation
of this Agreement and the exhibits and schedules hereto shall be governed by and
construed in accordance with the
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domestic laws of the State of Colorado, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Colorado or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Colorado.
(3) In the event of any claim, dispute and controversy of
any nature between or among the Investor and the Company arising out of or in
connection with this Agreement, or the negotiation, execution, delivery,
performance, nonperformance or breach thereof (collectively, a "Dispute"), the
Investor and the Company shall consult and negotiate with each other in good
faith and otherwise use their respective commercially reasonable efforts to
settle such Dispute within a 45-day period after the Dispute first arises. If
the Dispute is not resolved or settled within such 45-day period then, upon
written notice by either party to the other, the Dispute shall be resolved by
binding arbitration in Denver, Colorado in accordance with Title 9 of the U.S.
Code (United States Arbitration Act) and the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"), as they may be amended from time to
time and as modified by this Agreement or decision of a majority of the
arbitrators. The arbitration shall be conducted in Denver, Colorado. The
Investor and the Company intend that arbitration be the sole remedy available as
to matters arbitrable hereunder. An arbitration award rendered by the
arbitrators shall be final and binding on the Investor and the Company and may
be filed with any court having jurisdiction over the Investor or the Company, as
the case may be, or their property as a basis of declaratory or other judgment
and of the issuance of execution.
(4) Unless otherwise agreed, any party requesting
arbitration hereunder shall do so within 15 days after the expiration of 45-day
negotiation period referenced in Section 8(C)(3), and failure by either party to
request arbitration within such period shall thereafter bar such Dispute in any
forum whatsoever. When a party timely requests arbitration hereunder, the
Dispute shall be resolved by a panel of three neutral arbitrators to be selected
as follows: the party requesting the arbitration shall, incident to giving the
notice of arbitration, also notify the other party of the name of an arbitrator
selected from a list of qualified persons supplied by the AAA, and the other
party shall, within 20 days after receipt of such notice, notify the party
requesting arbitration of the name of an arbitrator it has selected from such
list. The two arbitrators shall, within 20 days after notification of the
identity of the second arbitrator, choose a third arbitrator.
(5) The Commercial Arbitration Rules of the AAA and
decisions by a majority of the arbitration panel shall determine the rules
governing admissibility of evidence and the rules of procedure and discovery.
The action of a majority of the arbitration panel shall govern all actions by
the panel, and the arbitrators shall render their decision promptly but in no
event more than 60 days after the conclusion of submission of evidence. The
arbitration award shall be in writing and shall specify factual and legal basis
for the award. Either party may make application to the arbitration panel
seeking injunctive relief to maintain the status quo until such time as the
arbitration award is rendered or the Dispute is otherwise resolved. The
arbitration panel shall have the authority to award any remedy or relief that a
court of the State of Colorado could order or grant, including specific
performance of any obligation created under the Agreement, issuance of an
injunction or money damages, but excluding punitive, incidental or consequential
damages.
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(6) Each party shall pay the fees and expenses of the
arbitrator selected by it and one-half of the reasonable fees and expenses of
the third arbitrator. All other fees and expenses of each party incurred in
connection with the arbitration shall be paid as determined by the arbitrators.
(7) The parties agree that they will not seek from the
arbitrator any claim under this Agreement any award or judgment for punitive
damages (or any other amount awarded for the purpose of imposing a penalty), and
that if any such award or judgment is granted, the parties agree not to seek to
satisfy such award or judgment.
D. Amendments and Waivers. Except as otherwise provided herein,
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the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of two-thirds of the Registrable
Securities then outstanding. This Agreement shall become effective as to the
Company and the Investor when executed by the Company and by the Investor.
E. Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
F. Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
G. Counterparts. This Agreement may be executed in separate
------------
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
agreement.
H. Descriptive Headings: Interpretation. The descriptive
------------------------------------
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
I. Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Unless otherwise indicated below,
such notices, demands and other communications will be sent to each Investor at
the address listed on the signature page(s) to this Agreement and to the Company
at the addresses indicated below:
11
<PAGE>
Douglas Kelsall
eCollege.com
10200A E. Girard Avenue
Denver, CO 80231
With a copy to:
John E. Hayes III
Brobeck, Phleger & Harrison LLP
370 Interlocken Boulevard
Suite 500
Broomfield, CO 80021
and to:
Jack W. Blumenstein
Blumenstein/Thorne Information Partners LLC
270 E. Westminster, 2/nd/ floor
Lake Forest, IL 60045
With a copy to:
Jon A. Ballis
Sidley & Austin
10 S. Dearborn Street
Chicago, IL 60603
[Signature page to follow.]
12
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Registration Agreement
as of the date first above written.
eCollege.com
By: /s/ Douglas H. Kelsall
---------------------------------------------
Name: Douglas H. Kelsall
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Title: Chief Financial Officer
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Blumenstein/Thorne Information Partners I, L.P.
By: Blumenstein/Thorne Information Partners,
L.L.C., as General Partner
By: /s/ Oakleigh Thorne
---------------------------------------------
Name: Oakleigh Thorne
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Title: Co-President
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13
