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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated as of
December 12, 2000, is entered into by and among (i) iBasis, Inc. a Delaware
corporation (the "COMPANY"), (ii) the persons and entities listed on the
signature pages hereto under the heading "Designated Stockholders" (each
individually, a "DESIGNATED STOCKHOLDER", and collectively, the "DESIGNATED
STOCKHOLDERS") and (iii) each person or entity that subsequently becomes a party
to this Agreement pursuant to, and in accordance with, the provisions of Section
10 hereof (collectively, the "PERMITTED TRANSFEREES" and each individually an
"PERMITTED TRANSFEREE").
BACKGROUND
WHEREAS, the Company, Penguin Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of the Company ("MERGER SUB"), and PriceInteractive,
Inc., a Delaware corporation ("TARGET"), and the Stockholder Representatives and
Company Principal Stockholders named therein, intend to enter into an Agreement
and Plan of Merger and Reorganization dated as of the date hereof (the "MERGER
AGREEMENT"), pursuant to the terms of which, among other things, Target will be
merged with and into Merger Sub (the "MERGER"), and the outstanding shares of
Target's Class A and Class B Common Stock, par value $0.01 per share, 1998
Redeemable Preferred Stock, $0.01 par value per share, and Series A Convertible
Preferred Stock, $0.01 par value per share, will be converted into the right to
receive shares of Common Stock (as defined below) and a specified amount of cash
consideration; and
WHEREAS, as a material inducement to Target and the Principal
Stockholders to enter into the Merger Agreement, the Company is willing to
execute and deliver this Registration Rights Agreement to provide for the
registration under the Securities Act of 1933, as amended, of the shares of
Common Stock issuable to the Designated Stockholders and Permitted Transferees
in the Merger;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement, the following terms as used herein shall have the following meanings:
"ACQUIRED SHARES" shall mean the shares of Common Stock
issuable to the Designated Stockholders in the Merger.
"CLOSING" shall have the meaning ascribed to such term in the
Merger Agreement.
"COMMON STOCK" shall mean the Common Stock, par value $.001
per share, of the Company (or such other security of the Company into
which such Common Stock may be subsequently reconstituted).
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"PERSON" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization, and any
government, governmental department or agency or political subdivision
thereof.
"REGISTRABLE SHARES" shall mean (a) the Acquired Shares, (b)
any other shares of Common Stock acquired by a Designated Stockholder
pursuant to the indemnification provisions of the Merger Agreement or
otherwise and (c) any other shares of Common Stock issued in respect of
any of such securities (as a result of stock splits, stock dividends,
reclassifications, recapitalizations or other events); PROVIDED,
HOWEVER, such term shall not, after the Mandatory Registration
Termination Date, include any of the shares listed in clauses (a)-(c)
that have become eligible for resale pursuant to Rule 144(k).
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act and any successor or substitute rule, law or provision.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933,
as amended.
"STOCKHOLDERS" shall mean, collectively, the Designated
Stockholders and the Permitted Transferees; PROVIDED, HOWEVER, that the
term "STOCKHOLDERS" shall not include any of the Designated
Stockholders or any of the Permitted Transferees that ceases to own or
hold any Registrable Shares.
2. MANDATORY REGISTRATION.
Within ten (10) business days after the date of this Agreement, the
Company will prepare and file with the SEC a registration statement on Form S-3
for the purpose of registering under the Securities Act all of the Registrable
Shares for resale by, and for the account of, the Stockholders as selling
stockholders thereunder (the "INITIAL REGISTRATION STATEMENT"). The Initial
Registration Statement shall permit the Stockholders to offer and sell, on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act, any
or all of the Registrable Shares. Attached as SCHEDULE A hereto is a list of the
Stockholders who shall be initially named as selling stockholders in the Initial
Registration Statement. The Company agrees to use its reasonable best efforts to
cause the Registration Statement to become effective as soon as practicable
after filing with the SEC. The Company shall be required to keep the Initial
Registration Statement effective until such date that is the earlier of (i) the
date when all of the Registrable Shares registered thereunder shall have been
sold or (ii) the second anniversary of the Closing plus the aggregate amount of
days, if any, that the Company has implemented Suspension Period(s) (as
hereinafter defined) as further provided in Section 9 (such date is referred to
herein as the "MANDATORY REGISTRATION TERMINATION DATE"). Thereafter, the
Company
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shall be entitled to withdraw the Initial Registration Statement and the
Stockholders shall have no further right to offer or sell any of the
Registrable Shares pursuant to the Initial Registration Statement (or any
prospectus relating thereto). Notwithstanding the foregoing, in no event
shall the Company be required to file the Initial Registration Statement
unless and until the Company shall have received all information relating to
the Target and the Stockholders reasonably requested by the Company or
otherwise required to be included therein.
3. PIGGYBACK REGISTRATION RIGHTS.
3.1. REGISTRATION. If at any time after (a) the Effective Time and
prior to or after the Mandatory Registration Termination Date, the Company
proposes to register any of its Common Stock under the Securities Act, whether
for its own account or for the account of any stockholder of the Company or
pursuant to registration rights granted to holders of securities of the Company
(but excluding in all cases any registrations to be effected on Forms S-4 or S-8
or any applicable successor Forms) in connection with a proposed underwritten
offering of the Common Stock or (b) after the Mandatory Registration Termination
Date, the Company proposes to register any of its Common Stock under the
Securities Act, whether for its own account or for the account of any
stockholder of the Company or pursuant to registration rights granted to holders
of securities of the Company (but excluding in all cases any registrations to be
effected on Forms S-4 or S-8 or any applicable successor Forms), the Company
shall, each such time, give to each Stockholder written notice of its intent to
do so. Upon the written request of any Stockholder given within ten days after
the giving of any such notice by the Company, the Company shall use its
reasonable best efforts to cause to be included in such registration the
Registrable Shares of such Stockholder, to the extent requested to be
registered, subject to Section 3.2; PROVIDED that such Stockholder agrees to
sell those of its Registrable Shares to be included in such registration in the
same manner and on the same terms and conditions as the other shares of Common
Stock which the Company purposes to register, and PROVIDED FURTHER, that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Section 3.1 without obligation to any Stockholder.
3.2. PRIORITY OF THE COMPANY SHARES AND DEMAND SHARES. The Company
shall not be required under Section 3.1 to include the Registrable Shares of
any Stockholder in any offering involving an underwriting of shares being
issued by the Company or being sold pursuant to any demand registration
rights of any stockholder of the Company, unless such Stockholder accepts and
agrees to the terms of the underwriting as agreed upon between the Company
and/or the stockholder(s) exercising demand registration rights, as
applicable, and the underwriters selected by the Company and/or such
stockholders, and then only in such quantity as (without any reduction in the
numbers of shares to be sold for the account of the Company and any such
stockholders) will not, in the opinion of the underwriters, jeopardize the
success of the offering by the Company or such stockholders. If the total
number of shares of Common Stock which all selling stockholders of the
Company, including any Stockholders, request to be included in any offering
exceeds the number of shares which the underwriters believe to be compatible
with the success of the offering, the Company shall only be required to
include in the offering so many of shares of stockholders (including any
Stockholders and any stockholders exercising piggy-back registration rights)
as the underwriters believe will not (without any reduction in the number of
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shares to be sold for the account of the Company and any stockholder(s)
exercising demand registration rights) jeopardize the success of the
offering. Notwithstanding the foregoing, in no event shall the number of
shares to be included in a registration by stockholders who have exercised
demand registration rights pursuant to the First Amended and Restated
Registration Rights Agreement, dated as of July 12, 1999 (the "JULY 1999
REGISTRATION RIGHTS AGREEMENT"), between the Company and certain of the
Company's stockholders, with respect to such registration, be reduced by any
Registrable Shares sought to be included in such registration pursuant to
this Section 3.
3.3 FORM S-3 REGISTRATION RIGHTS.
(a) REGISTRATION UPON REQUEST. In the event that the Company shall
receive from Stockholders holding twenty (20) percent of the Registrable Shares
then outstanding a written request or requests that the Company effect an
additional registration on Form S-3 (or any applicable successor Form) with
respect to all or a part of the Registrable Shares owned by such Stockholders,
then the Company will promptly use its reasonable best efforts to effect such
registration of all or such portion of such Stockholders' Registrable Shares as
are specified in such request; PROVIDED that, if the Company has been given a
notice of the type specified in this Section 3.3, the Company is not required to
pursue the registration referred to in the second notice. Promptly after receipt
by the Company of a notice requesting registration pursuant to this Section 3.3,
the Company shall give to each Stockholder written notice of such request for
registration. Upon the written request of any Stockholder given within ten days
after the giving of any such notice by the Company, the Company shall use its
reasonable best efforts to cause to be included in such registration the
Registrable Shares of such Stockholder, to the extent requested to be
registered. Subject to paragraph (c) below, the Company may include in any
registration pursuant to this Section 3.3 additional shares of Common Stock for
sale for its own account or for the account of any other Person. No registration
under this Section 3.3 shall be underwritten unless the Company shall otherwise
elect in its sole and absolute discretion.
(b) SELECTION OF UNDERWRITERS. If a registration pursuant to this
Section 3.3 involves an underwritten offering, the underwriter or underwriters
thereof shall be selected by the Company.
(c) PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
this Section 3.3 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the
requesting Stockholders and (ii) second, the other shares of Common Stock of the
Company proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of such
other securities.
(d) LIMITATION ON REGISTRATIONS. Notwithstanding anything to the
contrary in this Section 3, the Company shall not be required to effect any
registration pursuant to this
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Section 3.3 unless the Registrable Shares to be so registered shall have an
aggregate proposed sales price of at least $1,000,000.
4. ADDITIONAL OBLIGATIONS OF THE COMPANY.
Whenever the Company is required under Section 2 or Section 3 to use
its reasonable best efforts to effect the registration of any of the Registrable
Shares of any Stockholder, the parties agree that such obligation shall include
that the Company shall promptly:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its
reasonable best efforts to cause such registration statement to become
and remain effective; PROVIDED, however that the Company shall in no
event be obligated to cause any such registration (other than the
Initial Registration Statement) to remain effective for more than 180
days;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(c) Furnish to such Stockholder such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the
Stockholder may reasonably request in order to facilitate the
disposition of such Registrable Shares;
(d) Use its reasonable best efforts to register and qualify
such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as shall be reasonably appropriate in the opinion of
the Company and the managing underwriters, 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, and PROVIDED FURTHER that
(anything in Section 6 to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the securities
shall be qualified shall require that expenses incurred in connection
with the qualification therein of the securities be borne by selling
shareholders, then each Stockholder shall, to the extent required by
such jurisdiction, pay its PRO RATA share of selling expenses; and
(e) Notify the selling Stockholders, at any time when a
prospectus relating to a registration statement filed pursuant to this
Agreement is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
or relating to such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements
therein not misleading; and, thereafter, the Company will promptly
prepare (and, when completed, give notice to each selling Stockholder)
a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, such prospectus
will not contain an untrue statement of a material fact or omit to
state any fact necessary to make
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the statements therein not misleading; PROVIDED that upon such
notification by the Company, the selling Stockholders will not offer
or sell Registrable Shares until the Company has notified the selling
Stockholders that it has prepared a supplement or amendment to such
prospectus and delivered copies of such supplement or amendment to
the selling Stockholders (it being understood and agreed by the
Company that the foregoing proviso shall in no way diminish or
otherwise impair the Company's obligation to promptly prepare a
prospectus amendment or supplement as above provided in this Section
4(e) and deliver copies of same as above provided in Section 4(a)
and 4(b) hereof).
5. FURNISH INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that any Stockholder requesting
registration of any of such Stockholder's Registrable Shares shall furnish to
the Company such information regarding such Stockholder, the Registrable Shares
held by such Stockholder, the proposed plan of distribution of such Registrable
Shares, and any other information as the Company shall reasonably request and as
shall be required in order to effect any such registration by the Company.
6. EXPENSES.
All expenses incurred in connection with a registration pursuant to
this Agreement (excluding underwriting commissions and discounts), including
without limitation reasonable fees and expenses of one special counsel for the
Selling Stockholders (except with regard to the registration contemplated by
Section 2 of this Agreement), all registration and qualification fees, printing
costs, and fees and disbursements of counsel for the Company, shall be borne by
the Company; PROVIDED, HOWEVER, that the Company shall not be required to pay
for blue sky registration or qualification expenses in connection with states in
which the Company is not registering or qualifying its original issue shares or
Registrable Shares of Company stockholders upon exercise of their registration
rights.
7. INDEMNIFICATION.
7.1. INDEMNIFICATION. In the event that any Registrable Shares of any
Stockholder are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless such Stockholder, any underwriter (as defined in the
Securities Act) for the Company, and each officer and director of such
Stockholder or such underwriter and each Person, if any, who controls
such Stockholder or such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the
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omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein not misleading; and will reimburse the Stockholder, such
underwriter or such officer, director or controlling Person for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 7.1(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises primarily out of or
is based upon an untrue statement or alleged untrue statement or
omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with
information furnished expressly for use in connection with such
registration by such Stockholder, any underwriter for such
Stockholder or controlling Person with respect to such Stockholder.
(b) To the extent permitted by law, such Stockholder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who have signed such registration statement, each Person,
if any, who controls the Company within the meaning of the Securities
Act, and any underwriter for the Company (within the meaning of the
Securities Act) against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling Person, or
underwriter may become subject to, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue
or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus contained
therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with information furnished in writing
by the Stockholder expressly for use in connection with such
registration; and the Stockholder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director,
officer, controlling Person, or underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in
this Section 7.1(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is
effected without the consent of such Stockholder against which the
request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 7.1 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 7.1, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the
extent the
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indemnifying party desires, jointly with any other indemnifying
party similarly noticed, to assume at its expense the defense
thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement
of any such action, if prejudicial to his ability to defend such
action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 7.1 only if and to the
extent such failure to promptly notify was prejudicial to its
ability to defend such action, and the omission so to notify the
indemnifying party will not relieve the indemnifying party of any
liability which he may have to any indemnified party otherwise other
than under this Section 7.1.
(d) If the indemnification provided for in this Subsection 7.1
is held by a court of competent jurisdiction to be unavailable or
insufficient to hold harmless an indemnified party under this
Subsection 7.1, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of the claims, losses, damages or
liabilities (or actions in respect thereof) referred to in Subsection
(a) or (b) of this Section 7.1 (i) in such proportion as is appropriate
to reflect the relative fault of each indemnifying party in connection
with the statements or omissions that resulted in such claims, losses,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
considerations referred to in clause (i) above but also the relative
benefit to each indemnifying party. Relative fault shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission or alleged omission
to state a material fact relates to information supplied by each
indemnifying party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and
equitable if contributions pursuant to this Subsection 7.1(d) were to
be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the first sentence of this Section 7.1(d). The amount
paid by an indemnified party as a result of the claims, losses, damages
or liabilities (or actions in respect thereof) referred to in the first
sentence of this Section 7.1(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigation, preparing to defend or defending against
any action or claim that is the subject of this Subsection 7.1(d). 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.
(e) Notwithstanding the foregoing, the liability of each
Stockholder under this Subsection 7.1 shall be limited to an amount
equal to the net proceeds of the shares sold by such Stockholder.
7.2. OVERRIDE. Notwithstanding anything in this Section 7 to the
contrary, if, in connection with an underwritten public offering of the
Registrable Shares, the Company, any Stockholder and the underwriters enter into
an underwriting or purchase agreement relating to
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such offering which contains provisions covering indemnification as between
the Company and such Stockholder, then the indemnification provision of this
Section 7 shall be deemed inoperative for purposes of such offering.
8. DELAY OF REGISTRATION. The Stockholders shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation or
implementation of this Agreement.
9. DEFERRAL; BLACK-OUT. Notwithstanding anything in this Agreement to
the contrary, if the Company shall furnish to the selling Stockholders named in
any registration statement filed hereunder a certificate signed by the President
or Chief Executive Officer of the Company stating that the Board of Directors of
the Company has made the good faith determination (after consultation with
counsel) (i) that continued use by the selling Stockholders of the Registration
Statement for purposes of effecting offers or sales of Registrable Shares
pursuant thereto would require, under the Securities Act, premature disclosure
in such registration statement (or the prospectus relating thereto) of material,
nonpublic information (the "NON-PUBLIC INFORMATION") concerning the Company, its
business or prospects or any proposed material transaction involving the
Company, (ii) that such premature disclosure would be materially adverse to the
Company or any such proposed material transaction or would make the successful
consummation by the Company of any such material transaction significantly less
likely and (iii) that it is therefore essential to suspend the use by the
Stockholders of such registration statement (and the prospectus relating
thereto) for purposes of effecting offers or sales of Registrable Shares
pursuant thereto, then the right of the selling Stockholders to use the
registration statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be
suspended for a period (the "SUSPENSION PERIOD") of not more than 60 days after
delivery by the Company of the certificate referred to above in this Section 10.
During the Suspension Period, none of the Designated Stockholders shall offer or
sell any Registrable Shares pursuant to or in reliance upon the registration
statement (or the prospectus relating thereto). Notwithstanding the foregoing
(a) if disclosure of the Non-Public Information is made during a Suspension
Period, then the Company shall promptly terminate the Suspension Period and
immediately notify the Stockholders of such termination and (b) the Company may
not implement the right to initiate a Suspension Period more than twice in any
twelve month period. To the extent that the Company initiates one or more
Suspension Periods hereunder, the Company shall maintain the effectiveness of
the Initial Registration Statement for an additional number of days equal to the
aggregate amount of days that the Company implemented such Suspension Periods.
10. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any
Stockholder under this Agreement shall be transferred or assigned to any person
unless (i) such person is a Qualifying Holder (as defined below), and (ii) such
person agrees to become a party to, and bound by, all of the terms and
conditions of, this Agreement by duly executing and delivering to the Company an
Instrument of Adherence in the form attached as EXHIBIT A hereto. For purposes
of this Section 11, the term "QUALIFYING HOLDER" shall mean, with respect to any
Stockholder, (i) any partner thereof, (ii) any corporation, partnership
controlling, controlled by, or under common control with, such Stockholder or
any partner thereof including, without limitation, any partner of The Summit
Parties (as defined in the Merger
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Agreement), (iii) any other direct transferee from such Stockholder of at
least 50% of those Registrable Shares held or that may be acquired by such
Stockholder, or (iv) in the case of MicroStrategy Incorporated, any
wholly-owned subsidiary of MicroStrategy Incorporated. None of the rights of
any Stockholder under this Agreement shall be transferred or assigned to any
Person (including, without limitation, a Qualifying Holder) that acquires
Registrable Shares in the event that and to the extent that such Person is
eligible to resell such Registrable Shares pursuant to Rule 144(k) of the
Securities Act.
11. EFFECTIVENESS; TERMINATION. This Agreement shall terminate and be
of no further force or effect, automatically and without any action being
required of any party hereto, upon the termination of the Merger Agreement
pursuant to Section 18 thereof or if the Effective Time does not occur for any
reason whatsoever. The obligations of the Company hereunder shall expire once
there are no more Registrable Shares.
12. GENERAL.
12.1. REMEDIES. In case that any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties to this Agreement are cumulative and
not exclusive of any other right, power or remedy which such parties may have
under any other agreement or law. No single or partial assertion or exercise of
any right, power or remedy of a party hereunder shall preclude any other or
further assertion or exercise thereof.
12.2. ASSIGNMENT. None of the parties to this Agreement shall be
permitted to assign or delegate any of their respective rights or obligations
under this Agreement, except as otherwise provided in Section 10.
12.3. SURVIVAL. The rights and obligations of the parties hereto set
forth herein shall survive indefinitely, unless and until, by their respective
terms, they are no longer applicable.
12.4. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
12.5. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
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(i) If to the Company, to:
iBasis, Inc.
20 Second Avenue
Burlington, Massachusetts 01803
Attn: Ofer Gneezy
Fax: (781) 505-7304
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
Fax: 617-951-8736
Attn: Johan V. Brigham, Esq.
(ii) If to a Stockholder, to the address or addresses of such
Stockholder set forth on the signature pages thereto.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 12.5, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iii) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions of this Section 12.5, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
12.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
Stockholders holding of record at least a majority of the Registrable Shares
outstanding at such time.
12.7. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
<PAGE>
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12.8. NO WAIVER OF FUTURE BREACH. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof. No assent, express or implied, by any party
hereto to any breach in or default of any agreement or condition herein
contained on the part of any other party hereto shall constitute a waiver of or
assent to any succeeding breach in or default of the same or any other agreement
or condition hereof by such other party.
12.9. NO IMPLIED RIGHTS OR REMEDIES; THIRD PARTY BENEFICIARIES. Except
as otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
12.10. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
12.11. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
12.12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts, excluding
choice of law rules thereof.
12.13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
12.14. SELECTION OF UNDERWRITER. The underwriter, if any, of any
offering under Section 2 or 3.3 shall be selected by holders of a majority of
the Registrable Shares held by The Summit Parties included therein, PROVIDED
that such underwriter shall be reasonably acceptable to the Company.
12.15. REPORTS UNDER EXCHANGE ACT. With a view to making available to
the holders of Registrable Shares the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the Commission that may at
any time permit a holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to
use its reasonable best efforts to satisfy the requirements of all such rules
and regulations (including the requirements for public information, registration
under the Exchange Act and timely reporting to the Commission). The Company will
furnish to each holder of Registrable Shares, whenever requested, a written
statement as to its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, a copy of its most recent annual or
quarterly report, and such other reports and information filed by the Company as
<PAGE>
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such holder may reasonably request in connection with the sale of Registrable
Shares without registration.
12.16. REGISTRATION RIGHTS OF OTHERS. Without the prior consent of
Stockholders holding a majority of the Registrable Shares then outstanding, the
Company shall not grant to any other holder of the Company's securities
registration rights that are superior to or in any way adversely affect the
registration rights granted to the Stockholders hereunder.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed as an instrument
under seal as of the date first above written.
IBASIS, INC.
By: /s/ Ofer Gneezy
------------------------------
Name: Ofer Gneezy
Title: President and Chief Executive Officer
DESIGNATED STOCKHOLDERS:
/s/ Daniel J. Price
------------------------------
Name: Daniel J. Price
Address: c/o PriceInteractive, Inc.
11800 Sunrise Valley Drive
Reston, VA 20191
/s/ Timothy W. Price
------------------------------
Name: Timothy W. Price
Address: c/o PriceInteractive, Inc.
11800 Sunrise Valley Drive
Reston, VA 20191
<PAGE>
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SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: Member
SUMMIT VENTURES IV, L.P.,
By: Summit Partners IV, L.P.,
Its General Partner
By: Stamps, Woodsum & Co. IV,
L.P.,
Its General Partner
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: General Partner
SUMMIT INVESTORS III, L.P.
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: General Partner
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: Member
<PAGE>
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SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: Member
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Bruce R. Evans
-------------------------
Name: Bruce R. Evans
Title: Member
<PAGE>
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MICROSTRATEGY INCORPORATED
/s/ Eric F. Brown
-------------------------
Name: Eric F. Brown
Title: President and CFO
/s/ Dana Skaddan
-------------------------
Name: Dana Skaddan
Address: c/o PriceInteractive, Inc.
11800 Sunrise Valley Drive
Reston, VA 20191
/s/ Daniel Moore
-------------------------
Name: Daniel Moore
Address: c/o PriceInteractive, Inc.
11800 Sunrise Valley Drive
Reston, VA 20191
<PAGE>
iBASIS, INC.
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of December 12, 2000, among iBasis, Inc., a Delaware corporation (the
"COMPANY"), the Designated Stockholders and the Permitted Transferees, as
amended and in effect from time to time (the "REGISTRATION RIGHTS AGREEMENT").
Capitalized terms used herein without definition shall have the respective
meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of
[___________] shares of common stock, par value $0.01 per share (the "COMMON
STOCK"), of the Company, that are Acquired Shares under the Registration Rights
Agreement hereby agrees that, from and after the date hereof, the undersigned
has become a party to the Registration Rights Agreement in the capacity of a
Permitted Transferee, and is entitled to all of the benefits under, and is
subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Permitted Transferees.
This Instrument of Adherence shall take effect and shall become a part of the
Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts.
Signature:
--------------------------
Name:
Title:
Accepted:
IBASIS, INC.
By:
--------------------------------------------------
Name:
Title:
Date:
-------------------------------
