exv10w3



 





EXHIBIT 10.3




Execution Version




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made on and as of January 31,
2008, by and among the individuals listed on the signature pages hereto (each, a
“Recipient”) and Blackboard Inc., a Delaware corporation (“Parent”).



RECITALS




     A. Parent and The NTI Group, Inc., a Delaware corporation (the “Company”), are parties
to that certain Agreement and Plan of Merger dated as of January 11, 2008 (the “Merger
Agreement”), by and among Parent, the Company, a wholly-owned subsidiary of Parent, and Pace
Holdings, LLC, a Delaware limited liability company. This Agreement is an inducement to Parent and
the Company to enter into the Merger Agreement, and it is a condition precedent to Parent’s and the
Company’s obligations to effect the Merger thereunder that this Agreement shall have been entered
into and be in full force and effect.



     B. Pursuant to the terms of the Merger Agreement, Parent will issue Parent Common Stock to
each Recipient and Parent is required to register for resale such Parent Common Stock in accordance
with the terms hereof.



AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:



     1. Certain Definitions. Capitalized terms used herein but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Merger Agreement.



     2. Registration Rights.



          (a) On or prior to the Closing, Parent shall have filed or caused to be filed with the
Securities and Exchange Commission (the “SEC”) a registration statement (the
“Registration Statement”) on any appropriate form under the Securities Act of 1933, as
amended (the “Securities Act”), with respect to the offering and sale or other disposition
by the Recipients of no less than one hundred percent (100%) of the Parent Common Stock issued to
the Recipients in accordance with the Merger Agreement (the “Registrable Securities”) and
such Registration Statement shall have been declared effective under the Securities Act and shall
include a “Plan of Distribution” substantially in the form of Exhibit E attached to the Merger
Agreement. Each Recipient agrees to cooperate with and provide assistance to Parent, as Parent may
reasonably request, in connection with any registration and sale of the Registrable Securities.




          (b) Parent agrees that it will (i) keep such Registration Statement continuously effective and
until the earlier of (A) the second (2nd) anniversary of the Closing, (B) the date on
which all of the Registrable Securities have been sold or (C) the date on which all such shares may
be continuously sold by each Recipient named therein without any volume limitations in reliance on
Rule 144 of the Securities Act or any rule of similar effect and prepare and file with




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the SEC any amendments or supplements to the Registration Statement or prospectus which may be
necessary to comply with the provisions of the Securities Act with respect to the offer of the
Registrable Securities covered by such Registration Statement; (ii) prepare and promptly file with
the SEC and promptly notify the Recipients of the filing of such amendment or supplement to such
Registration Statement or prospectus as may be necessary to correct any statement therein or
omission therefrom if, at any time when a prospectus relating to the Registrable Securities is
required to be delivered under the Securities Act, any event with respect to Parent shall have
occurred as a result of which any prospectus would include an untrue statement of material fact or
omit to state any material fact necessary to make the statements therein not misleading; (iii) in
case the Recipients are required to deliver a prospectus, prepare promptly such amendment or
amendments to such Registration Statement and such prospectus or prospectuses as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the Securities Act; (iv) advise
the Recipients promptly after Parent shall receive notice or obtain knowledge of the issuance of
any stop order by the SEC suspending the effectiveness of the Registration Statement or amendment
thereto or of the initiation or threatening of any proceedings for that purpose, and promptly use
commercially reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; (v) use commercially reasonable efforts to qualify
such Registrable Securities for sale under the securities or “blue sky” laws of such states within
the United States as the Recipients may reasonably designate, except that Parent shall not be
required in connection therewith or as a condition thereto to qualify to do business in any such
state or to take any action which would subject it to general service of process in any such
jurisdiction where it is not then so subject; and (vi) furnish to the Recipients, as soon as
available, copies of any such Registration Statement and each preliminary and final prospectus, or
supplement or amendment required to be prepared with respect thereto, all in such quantities as
they may from time to time reasonably request.




          (c) Parent shall pay all expenses incident to the performance of or compliance with this
Section 2, including, without limitation, all registration, filing and Financial Industry
Regulatory Authority (formerly the “NASD”) fees, all fees and expenses of complying with securities
or blue sky laws of any jurisdiction pursuant to clause 2(b)(v), all word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and disbursements of counsel for
Parent and one counsel for the Recipients as a group (as selected by a majority in interest of the
Recipients who participate in the registration), and expenses for any audits incident to or
required by any such registration. Each Recipient shall pay the underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of such Recipient’s Registrable
Securities.




          (d) Each Recipient included in any Registration Statement will furnish to Parent such
information regarding such Recipient and the distribution proposed by such Recipient as Parent may
reasonably request.




          (e) Parent shall use commercially reasonable efforts to cause the Registrable Shares to be
listed for trading on any securities exchange on which Parent Common Stock is at the time listed
for trading.




          (f) Indemnification.




               (i) Parent’s Indemnification of Recipients. To the extent permitted by law, the
Parent will indemnify each Recipient with respect to which registration, qualification or



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compliance of Registrable Securities has been effected pursuant to this Section 2, and each
underwriter, if any, and each person who controls any underwriter, against all claims, losses,
damages or liabilities (or actions in respect thereof) arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any Registration Statement,
prospectus, offering circular, or other document incident to any such registration, qualification
or compliance, or any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or any violation by
the Parent of any rule or regulation promulgated under the Securities Act or Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or state or federal law applicable to the
Parent and relating to action or inaction required of the Parent in connection with any such
registration, qualification or compliance; and the Parent will reimburse each such person for any
legal and any other expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action; provided, however, that the indemnity contained in
this Section 2(f)(i) shall not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if settlement is effected without the consent of the Parent (which consent
shall not unreasonably be withheld); and provided, further, that the Parent will not be liable in
any such case to the extent that any such claim, loss, damage, liability or expense arises out of
or is based upon (A) any untrue statement or omission based upon written information furnished to
the Parent by such Recipient, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Parent, (B) any violation by such Recipient of
any rule or regulation promulgated under the Securities Act or Exchange Act or state or federal law
applicable to such Recipient or (C) such Recipient’s willful misconduct or fraud.



               (ii) Recipient’s Indemnification of Parent. To the extent permitted by law, each
Recipient will, if Registrable Securities held by such Recipient are included in the securities as
to which such registration, qualification or compliance is being effected pursuant to this Section
2, indemnify the Parent, each of its directors and officers, each underwriter, if any, of the
Parent’s securities covered by such a Registration Statement, each person who controls the Parent
or such underwriter within the meaning of the Securities Act, and each other such Recipient,
against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of
or based upon any untrue statement (or alleged untrue statement) of a material fact about such
Recipient or about the sale by such Recipient of such Recipient’s Registrable Securities that may
be contained in any such Registration Statement, prospectus, offering circular or other document
incident to such registration, qualification or compliance, or any omission (or alleged omission)
to state therein a material fact about such Recipient or about the sale by such Recipient of such
Recipient’s Registrable Securities that may be required to be stated therein or necessary to make
the statements therein not misleading but only, in the case of statements, to the extent that such
untrue statement is contained in any information or affidavit furnished in writing by such
Recipient to the Parent with authorization by such Recipient to use such information or affidavit
in connection with such Registration Statement, prospectus, offering circular or other document, as
the case may be, any violation by such Recipient of any rule or regulation promulgated under the
Securities Act or Exchange Act or state or federal law applicable to such Recipient and relating to
action or inaction required of such Recipient in connection with any such registration,
qualification or compliance or such Recipient’s willful misconduct or fraud; and will reimburse
each such person for any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action; provided, however,
that the indemnity contained in this Section 2(f)(ii) shall not apply to amounts paid in settlement
of any such claim, loss, damage, liability or action if settlement is



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effected without the consent of such Recipient (which consent shall not unreasonably be
withheld); and provided, further, that each Recipient’s liability under this Section 2(f)(ii) shall
be several, and not joint with other Recipients or holders, and shall not exceed such Recipient’s
net proceeds from the offering of securities made in connection with such registration.



               (iii) Indemnification Procedure. Promptly after receipt by an indemnified party of
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 2(f), notify the
indemnifying party in writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the defense of such action
and to select counsel for the defense of such action with the approval of any parties entitled to
indemnification, which approval shall not be unreasonably withheld; provided, however, that if
either party reasonably determines that there may be a conflict between the position of the
indemnifying party and the indemnified party in conducting the defense of such action by reason of
recognized claims for indemnity under this Section 2(f), then counsel for such party shall be
entitled to conduct the defense to the extent reasonably determined by such counsel to be necessary
to protect the interest of such party. The failure to notify an indemnifying party promptly of the
commencement of any such action, if prejudicial to the ability of the indemnifying party to defend
such action, shall relieve such indemnifying party, to the extent so prejudiced, of any liability
to the indemnified party under this Section 2(f).



               (iv) Contribution. If the indemnification provided for in this Section 2(f) is held
by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any
loss, liability, claim, damage or expense referred to herein, then the indemnifying party, in lieu
of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements, actions or
omissions that resulted in such loss, liability, claim, damage or expense as well as any other
relevant equitable considerations; provided that, in no event shall any contribution by a Recipient
under this Section 2(f) exceed the net proceeds from the relevant offering received by such
Recipient. The relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether an untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.



     3. Notices. All notices, requests, demands, claims and other communications required
or permitted hereunder shall be duly given only if made in writing and personally delivered, mailed
by first class, certified or registered mail, postage prepaid, sent by a major national delivery
service, or sent by telecopier (if confirmation of successful transmission is obtained). Any such
communications shall be effective (i) upon receipt, if personally delivered, (ii) on the fifth day
following the date of mailing, postage prepaid, if mailed, (iii) on the day of delivery if sent by
major national delivery service, or (iv) at the time transmission to the recipient’s telecopier is
completed (as shown by such confirmation of transmission), if sent by telecopier. Any such
communication shall be addressed to the parties at the following addresses (or at such other
address for a party as such party shall specify by like notice):




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	 	(a)	 	if to Parent:




Blackboard Inc.

1899 L Street, NW

5th Floor

Washington, DC 20036

Attention: Matthew H. Small





	 	(b)	 	if to a Recipient, as set forth on such Recipient’s signature
page hereto.





     4. Survival of Terms. This Agreement shall apply to and bind each Recipient and
Parent and their respective permitted assignees and transferees, heirs, legatees, executors,
administrators and legal successors.



     5. Amendments. No amendment, alteration, suspension or termination of this Agreement
shall impair the rights of any Recipient hereunder unless mutually agreed otherwise between the
affected Recipient and Parent, which agreement must be in writing and signed by Parent and the
Recipient.



     6. Severability. In the event that any one or more of the terms or provisions
contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other term or
provision of this Agreement, and the parties to this Agreement shall use their commercially
reasonable efforts to substitute one or more valid, legal and enforceable terms or provisions into
this Agreement which, insofar as practicable, implement the purposes and intent of this Agreement.
Any term or provision of this Agreement held invalid or unenforceable only in part, degree or
within certain jurisdictions shall remain in full force and effect to the extent not held invalid
or unenforceable to the extent consistent with the intent of the parties as reflected by this
Agreement.



     7. Entire Agreement. This Agreement and the Merger Agreement constitute the entire
agreement, and supersede all prior representations, warranties, agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof and thereof.



     8. Counterparts. This Agreement may be executed in one or more counterparts, all of
which constitute a single agreement, and shall become effective when one or more counterparts has
been signed by each of the parties and delivered to the other parties.



     9. Rules of Construction. The parties hereto agree that they have been represented by
counsel during the negotiation and execution of this Agreement and therefore waive the application
of any law, regulation, holding or rule of construction providing that ambiguities in an agreement
or other document will be construed against the party drafting such agreement or document.



     10. RECIPIENT REVIEW. EACH RECIPIENT REPRESENTS THAT HE OR SHE HAS READ THIS
AGREEMENT AND HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THE PREPARATION OF THIS AGREEMENT
AND IS FAMILIAR WITH ITS TERMS AND PROVISIONS.



     11. Assignment. A Recipient’s rights under this Agreement shall not be assignable by
such Recipient, other than by will or the laws of descent and
distribution, and shall not be subject to attachment, lien, levy, or other creditors’ rights under state or Federal law.



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     12. Governing Law. To the extent not superseded by the laws of the United States,
this Agreement will be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of laws. Each party to this Agreement irrevocably
and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of this
Agreement shall be brought in any state court of general jurisdiction located in New York, New York
(or, if no such court has jurisdiction or accepts jurisdiction, in any United States District Court
located in New York, New York); (ii) consents to the jurisdiction of any such court in any such
suit, action or proceeding; and (iii) waives any objection that such party may have to the laying
of venue of any such suit, action or proceeding in any such court. Each of the parties to this
Agreement hereby agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law. Each party to this Agreement hereby irrevocably consents to service of process in the
manner provided for notices in Section 3. Nothing in this Agreement shall affect the right of any
party to this Agreement to serve process in any other manner permitted by applicable law.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereby execute and
deliver this Registration Rights Agreement, on and as of the date first set forth above.



	 	 	 	 	 
	 	BLACKBOARD INC.

 	 
	 	By:  	/s/ Matthew Small
 	 
	 	Name:  	Matthew Small 	 	 
	 	Title:  	Chief Legal Officer 	 	 
	 
	 	RECIPIENTS:

 	 
	 	By:  	/s/ Robert E. Michalik
 	 
	 	Name:  	Robert E. Michalik  	 	 
	 	Title:  	Vice President
	 	 
	 	

Address:

c/o Kinderhook Industries, LLC

880 Seventh Avenue, 16th floor

New York, NY 10106 	 
	 




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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereby execute and
deliver this Registration Rights Agreement, on and as of the date first set forth above.




	 	 	 	 	 
	 	BLACKBOARD INC.

 	 
	 	By:  	/s/ Matthew Small
 	 
	 	Name:  	Matthew Small 	 	 
	 	Title:  	Chief Legal Officer 	 	 
	 
	 	RECIPIENTS:

 	 
	 	By:  	/s/ Joshua Roth
 	 
	 	Name:  	Joshua Roth 	 	 
	 	Title:  	Chief Technology Officer

	 	 
	 	
Address:

1250 Villa Woods Drive

Pacific Palisades, CA 90272 	 
	 




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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereby execute and
deliver this Registration Rights Agreement, on and as of the date first set forth above.




	 	 	 	 	 
	 	BLACKBOARD INC.

 	 
	 	By:  	/s/ Matthew Small
 	 
	 	Name:  	Matthew Small 	 	 
	 	Title:  	Chief Legal Officer 	 	 
	 
	 	RECIPIENTS:

 	 
	 	By:  	/s/ Thomas L. Motter
 	 
	 	Name:  	Thomas L. Motter  	 	 
	 	Title:  	President, Connect - ED

	 	 
	 	
Address:

601 Taper Drive, Seal Beach, CA 90740
 	 




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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereby execute and
deliver this Registration Rights Agreement, on and as of the date first set forth above.




	 	 	 	 	 
	 	BLACKBOARD INC.

 	 
	 	By:  	/s/ Matthew Small
 	 
	 	Name:  	Matthew Small 	 	 
	 	Title:  	Chief Legal Officer 	 	 
	 
	 	RECIPIENTS:

 	 
	 	By:  	/s/ Bruce G. Worman
 	 
	 	Name:  	Bruce G. Worman  	 	 
	 	Title:  	Chief Financial Officer 

	 	 
	 	
Address:

4216 Shorepointe Way

San Diego, CA 92130 	 	 
	 




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