EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement"), is made and entered into as
of the day of June 28, 2002, by and among CAMBEX CORPORATION, a
Massachusetts corporation (the "Company"), and the Persons listed on the
Purchaser Signature Pages hereto (each of whom is individually referred to as
a "Purchaser" and all of whom collectively are referred to as the
"Purchasers"). Defined terms used and not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Securities Exchange Agreement
(defined below).
Background
In connection with the consummation of the transactions contemplated by that
Securities Exchange Agreement (the "Exchange Agreement") of even date
herewith by and among the Company and the Purchasers, the Company has agreed,
upon the terms and subject to the conditions of the Exchange Agreement, to
issue to the Purchasers Preferred Shares in exchange for Series 1 Bridge
Financing Notes including all accrued but unpaid interest and penalties due
under the notes and the Repricing Warrants attached to the notes (the
"Notes"). The Preferred Shares are convertible into shares of the Company's
common stock, $.10 par value per share (the "Common Stock"). The Common
Stock issuable upon conversion of the Preferred Shares is hereinafter
referred to as the "Conversion Shares". To induce Purchasers to execute and
deliver the Exchange Agreement, the Company has agreed to file a Registration
Statement covering the Conversion Shares, under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "1933 Act"), and applicable state
securities laws.
Agreement
For and in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Purchasers hereby agree
as follows:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms are used with the meanings there after ascribed:
(a) "Investor" means any Purchaser and any transferee or assignee thereof
to whom any Purchaser assigns its rights under this Agreement and who agrees
to become bound by the provisions of this Agreement in accordance with
Section 9.
(b) "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof, or a
governmental agency.
(c) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing one or more Registration Statements
in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on
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a continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement(s) by the United States
Securities and Exchange Commission (the "SEC").
(d) "Registrable Securities" means the Conversion Shares and any shares of
capital stock issued or issuable with respect to the Conversion Shares as a
result of any stock split, stock dividend, recapitalization, exchange, or
similar event.
(e) "Registration Statement" means a registration statement of the Company
filed under the 1933 Act.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Exchange Agreement.
Section 2. Registration.
(a) Mandatory Registration. The Company shall prepare and file with the
SEC an amendment to its current Registration Statement dated November 7, 2000
to cover the resale of all of the Registrable Securities, within one hundred
and twenty (120) days of the date of the Exchange Agreement (the "Filing
Deadline"). If the Company is unable to file an amended Registration
Statement, but must file a new Registration Statement, such new Registration
Statement will be filed within one hundred and fifty (150) days of the date
of the Exchange Agreement (the "Extended Filing Deadline"). The Company
shall permit the registration statement to become effective within five (5)
business days after receipt of a "no review" notice from the SEC. Such
Registration Statement shall be kept current and effective for a period of
twelve (12) months from the Closing Date.
(b) Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) involves an underwritten offering,
the Purchasers shall have the right to select one legal counsel and an
investment banker or bankers and manager or managers to administer
their interest in the offering, which investment banker or bankers or
manager or managers shall be reasonably satisfactory to the Company.
(c) Piggy-Back Registrations. If at any time prior to the expiration of
the Registration Period (as hereinafter defined) the Company proposes
to file with the SEC a Registration Statement relating to an offering
for its own account or the account of others under the 1933 Act of any
of its securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to securities to be issued solely in connection
with any acquisition of any entity or business or equity securities
issuable in connection with stock option or other employee benefit
plans) the Company shall promptly send to each Investor who is entitled
to registration rights under this Section 2(c) written notice of the
Company's intention to file a Registration Statement and of such
Investor's rights under this Section 2(c) and, if within twenty (20)
days after receipt of such notice, such Investor shall so request in
writing, the Company shall include in such Registration Statement all
or any part of the Registrable Securities such Investor requests to be
registered, subject to the priorities set forth in Section 2(d) below.
No right to registration of Registrable Securities under this Section
2(c) shall be construed to limit any registration required under
Section 2(a) hereof. The obligations of the Company under this Section
2(c) may be waived by Investors holding a majority of the Registrable
Securities. If an offering in connection with which an Investor is
entitled to registration under this Section 2(c) is an underwritten
offering, then each Investor whose Registrable Securities are included
in such Registration Statement shall, unless otherwise agreed by
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the Company, offer and sell such Registrable Securities in an underwritten
offering using the same underwriter or underwriters and, subject to the
provisions of this Agreement, on the same terms and conditions as other
shares of Common Stock included in such underwritten offering.
(d) Priority in Piggy-Back Registration Rights in connection with
Registrations for Company Account. If the registration referred to in
Section 2(c) is to be an underwritten public offering for the account of the
Company and the managing underwriter(s) advise the Company in writing, that
in their reasonable good faith opinion, marketing or other factors dictate
that a limitation on the number of shares of Common Stock which may be
included in the Registration Statement is necessary to facilitate and not
adversely affect the proposed offering, then the Company shall include in
such registration: (i) first, all securities the Company proposes to sell for
its own account, (ii) second, up to the full number of securities proposed to
be registered for the account of the holders of securities entitled to
inclusion of their securities in the Registration Statement by reason of
demand registration rights, and (iii) third, the securities requested to be
registered by the Investors and other holders of securities entitled to
participate in the registration, drawn from them pro rata based on the number
each has requested to be included in such registration.
Section 3. Related Obligations. Whenever an Investor has requested that any
Registrable Securities be registered pursuant to Section 2 hereof, or at such
time as the Company is obligated to file a Registration Statement with the
SEC pursuant to Section 2(a) hereof, the Company will use its best efforts to
effect the registration of the Registrable Securities in accordance with the
intended method of disposition thereof and, pursuant thereto, the Company
shall have the following obligations:
(a) The Company shall promptly prepare and file with the SEC a Registration
Statement with respect to the Registrable Securities (on or prior to the
Filing Deadline or Extended Filing Deadline), for the registration of
Registrable Securities pursuant to Section 2(a) and use its best efforts to
cause such Registration Statement(s) relating to Registrable Securities to
become effective as soon as possible after such filing, and keep the
Registration Statement(s) effective pursuant to Rule 415 at all times until
the later of (i) the date as of which the Investors may sell all of the
Registrable Securities without restriction pursuant to Rule 144(k)
promulgated under the 1933 Act (or successor thereto) or (ii) the date on
which (A) the Investors shall have sold all the Registrable Securities and
(B) none of the Preferred Shares are outstanding (the "Registration Period"),
which Registration Statement(s) (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. In the event that the
Company's Registration Statement is not filed on or before the Filing
Deadline in the case of an amended Registration Statement or by the Extended
Filing Deadline in the case of a new Registration Statement, then the Company
agrees to pay to the holder of the Series B Preferred Stock a penalty equal
to two percent (2%) of the outstanding principal amount of the Series B
Preferred Stock. In such event, this registration penalty shall become
immediately payable by the Company without demand at the sole option of each
such Holder, either in cash or by a number of shares of freely tradable
Common Stock of the Company equal to the outstanding principal amount then
due divided by the average Closing Bid Price of the Company's Common Stock
for the five trading days prior to the date such penalty payments are due.
Such registration penalties are due at the end of each thirty (30) day period
beyond the Filing Deadline or Extended Filing Deadline, whichever is
applicable, pro-rated for partial months, until the Registration Statement is
filed.
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The Company will respond to all SEC comment letters within thirty (30) days
of receipt of such letters (the "SEC Response Deadline") by the Company. In
the event that the Company does not respond to SEC comment letters on or
before the SEC Response Deadline, then the Company agrees to pay to the
holder of the Series B Preferred Stock a penalty equal to two percent (2%) of
the outstanding principal amount of the Series B Preferred Stock. In such
event, this response penalty shall become immediately payable by the Company
without demand at the sole option of each such Holder, either in cash or by a
number of shares of freely tradable Common Stock of the Company equal to the
outstanding principal amount then due divided by the average Closing Bid
Price of the Company's Common Stock for the five trading days prior to the
date such penalty payments are due. Such response penalties are due at the
end of each thirty (30) day period beyond the SEC Response Deadline, pro-
rated for partial months, until the Company responds to the SEC comment
letter.
(b) The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement(s) and the prospectus (es) used in connection with the Registration
Statement(s), which prospectus (es) are to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep the Registration
Statement(s) effective at all times during the Registration Period, and,
during such period, comply with the provisions of the 1933 Act with respect
to the disposition of all Registrable Securities of the Company covered by
the Registration Statement(s) until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in the
Registration Statement(s). In the event the number of shares available under
a Registration Statement filed pursuant to this Agreement is insufficient to
cover all of the Registrable Securities, the Company shall amend the
Registration Statement, or file a new Registration Statement (on the short
form available therefor, if applicable), or both, so as to cover all of the
Registrable Securities, in each case, as soon as practicable, but in any
event within fifteen (15) days after the necessity therefor arises (based on
the market price of the Common Stock and other relevant factors on which the
Company reasonably elects to rely). The Company shall use its best efforts
to cause such amendment and/or new Registration Statement to become effective
as soon as practicable following the filing thereof.
(c) The Company shall furnish to each Investor whose Registrable Securities
are included in the Registration Statement(s) and its legal counsel, without
charge, (i) promptly after the same is prepared and filed with the SEC at
least one copy of the Registration Statement and any amendment thereto,
including financial statements and schedules, all documents incorporated
therein by reference, and all exhibits, the prospectus (es) included in such
Registration Statement(s) (including each preliminary prospectus) and all
correspondence by or on behalf of the Company to the SEC or the staff of the
SEC and all correspondence from the SEC or the staff of the SEC to the
Company or its representatives, related to such Registration Statement(s),
(ii) upon the effectiveness of any Registration Statement, ten (10) copies of
the prospectus included in such Registration Statement and all amendments and
supplements thereto (or such other number of copies as such Investor may
reasonably request), and (iii) such other documents, including any
preliminary prospectus, as such Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Investor.
(d) The Company shall use reasonable efforts to (i) register and qualify
the Registrable Securities covered by the Registration Statement(s)
under such other securities or "blue sky" laws of such jurisdictions in
the United States as any Investor reasonably requests, (ii) prepare and
file in those jurisdictions, such amendments (including post-effective
amendments) and
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supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period,
and (iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions; provided however,
that the Company shall not be required in connection therewith or as a
condition thereto to (A) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d) hereof,
(B) subject itself to general taxation in any such jurisdiction, or (C) file
a general consent to service of process in any such jurisdiction. The
Company shall promptly notify each Investor who holds Registrable Securities
of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or "blue sky" laws of any
jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
(e) In the event Investors who hold a majority of the Registrable
Securities being offered in the offering select underwriters for the
offering, the Company shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriters of such offering.
(f) As promptly as practicable after becoming aware of such event, the
Company shall notify each Investor in writing of the happening of any event,
of which the Company has knowledge, as a result of which, the prospectus
included in a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and promptly
prepare a supplement or amendment to the Registration Statement to correct
such untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to each Investor (or such other number of copies as
such Investor may reasonably request). The Company shall also promptly
notify each Investor in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when a
Registration Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to each Investor by
facsimile on the same day of such effectiveness and by overnight mail), (ii)
of any request by the SEC for amendments or supplements to a Registration
Statement or related prospectus or related information, and (iii) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(g) The Company shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction and, if such an order or suspension is issued,
to obtain the withdrawal of such order or suspension at the earliest possible
moment, and to notify each Investor who holds Registrable Securities being
sold (and, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof, or
its receipt of actual notice of the initiation, or threatened initiation of
any proceeding for such purpose.
(h) The Company shall permit each Investor a single firm of counsel or
such other counsel as thereafter designated as selling stockholders'
counsel by the Investors who hold a majority of the Registrable
Securities being sold, to review and comment upon the Registration
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Statement(s) and all amendments and supplements thereto at least seven (7)
days prior to their filing with the SEC, and not file any document in a
form to which such counsel reasonably objects. The Company shall not
submit a request for acceleration of the effectiveness of a Registration
Statement(s) or any amendment or supplement thereto without the prior
approval of such counsel, which consent shall not be unreasonably
withheld.
(i) At the request of the Investors who hold a majority of the Registrable
Securities being sold, the Company shall furnish, on the date that
Registrable Securities are delivered to an underwriter, if any, for sale in
connection with the Registration Statement (i) if required by an underwriter,
a letter, dated such date, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, and (ii) an opinion, dated as of
such date, of counsel representing the Company for purposes of such
Registration Statement, in form, scope, and substance as is customarily given
in an underwritten public offering, addressed to the underwriters and the
Investors.
(j) The Company shall make available for inspection by (i) any Investor,
(ii) any underwriter participating in any disposition pursuant to a
Registration Statement, (iii) one firm of attorneys and one firm of
accountants or other agents retained by the Investors, and (iv) one firm of
attorneys retained by all such underwriters (collectively, the "Inspectors")
all pertinent financial and other records, and pertinent corporate documents
and properties of the Company (collectively, the "Records"), as shall be
reasonably deemed necessary by each Inspector to enable each Inspector to
exercise its due diligence responsibility, and cause the Company's officers,
directors, and employees to supply all information which any Inspector may
reasonably request for purposes of such due diligence provided however, that
each Inspector shall hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (A) the disclosure of
such Records is necessary to avoid or correct a misstatement or omission in
any Registration Statement or is otherwise required under the 1933 Act, (B)
the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction,
or (C) the information in such Records has been made generally available to
the public other than by disclosure in violation of this or any other
agreement. Each Investor agrees that it shall, upon learning that disclosure
of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential.
(k) The Company shall hold in confidence and not make any disclosure of
information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with
federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-
appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of
this or any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning an Investor
is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt written notice to
such Investor and allow such Investor, at the Investor's expense, to
undertake appropriate action to prevent disclosure of, or to obtain
a
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protective order for, such information.
(l) The Company shall use its best efforts either to (i) cause all the
Registrable Securities covered by a Registration Statement to be listed on
each national securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange,
(ii) to secure designation and quotation of all the Registrable Securities
covered by the Registration Statement on the NASDAQ National or Small Cap
Market, (iii) if, despite the Company's best efforts to satisfy the preceding
clause (i) or (ii), the Company is unsuccessful in satisfying the preceding
clause (i) or (ii) to secure the inclusion for quotation on the NASDAQ
National or Small Cap Market for such Registrable Securities or, (iv) if,
despite the Company's best efforts to satisfy the preceding clause (iii), the
Company is unsuccessful in satisfying the preceding clause (iii), to secure
the inclusion for quotation on the over-the-counter market for such
Registrable Securities, and, without limiting the generality of the
foregoing, in the case of clause (iii) or (iv), to arrange for at least two
market makers to register with the National Association of Securities
Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
The Company shall pay all fees and expenses in connection with satisfying its
obligation under this Section 3(1).
(m) The Company shall cooperate with the Investors who hold Registrable
Securities being offered and, to the extent applicable, any managing
underwriter or underwriters, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing
the Registrable Securities to be offered pursuant to a Registration Statement
and enable such certificates to be in such denominations or amounts, as the
case may be, as the managing underwriter or underwriters, if any, or, if
there is no managing underwriter or underwriters, the Investors may
reasonably request and registered in such names as the managing underwriter
or underwriters, if any, or the Investors may request. Not later than the
date on which any Registration Statement registering the resale of
Registrable Securities is declared effective, the Company shall deliver to
its transfer agent instructions, accompanied by any reasonably required
opinion of counsel, that permit sales of unlegended securities in a timely
fashion that complies with then mandated securities settlement procedures for
regular way market transactions.
(n) The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investors of Registrable
Securities pursuant to a Registration Statement.
(o) The Company shall provide a transfer agent and registrar of all such
Registrable Securities not later than the effective date of such Registration
Statement.
(p) If requested by the managing underwriters or an Investor, the Company
shall immediately incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and the Investors
agree should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information with
respect to the number of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters,
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; make all required filings of such prospectus supplement or post-
effective amendment as soon as notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment; and supplement or
make amendments to any Registration Statement if requested by a shareholder
or any underwriter of such Registrable Securities.
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(q) The Company shall use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities.
(r) The Company shall otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC in connection with any
registration hereunder.
Section 4. Obligations of the Investors.
(a) At least seven (7) days prior to the first anticipated filing date of
the Registration Statement, the Company shall notify each Investor in writing
of the information the Company requires from each such Investor if such
Investor elects to have any of such Investor's Registrable Securities
included in the Registration Statement. It shall be a condition precedent to
the obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Investor
that such Investor shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the registration of such Registrable Securities, and shall
execute such documents in connection with such registration as the Company
may reasonably request.
(b) Each Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of the Registration
Statement(s) hereunder, unless such Investor has notified the Company in
writing of such Investor's election to exclude all of such Investor's
Registrable Securities from the Registration Statement.
(c) In the event Investors holding a majority of the Registrable Securities
being registered determine to engage the services of an underwriter, each
Investor agrees to enter into and perform such Investor's obligations under
an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities, unless such Investor notifies the Company in writing
of such Investor's election to exclude all of such Investor's Registrable
Securities from the Registration Statement(s).
(d) Each Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(g) or the
first sentence of 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement(s) covering such Registrable Securities until such Investor's
receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(g) or the first sentence of 3(f) and, if so directed by the
Company, such Investor shall deliver to the Company (at the expense of the
Company) or destroy all copies in such Investor's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(e) No Investor may participate in any underwritten registration hereunder
unless such Investor (i) agrees to sell such Investor's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the Investors entitled hereunder to approve such
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities,
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underwriting agreements, and other documents reasonably required under the
terms of such underwriting arrangements, and (iii) agrees to pay its pro
rata share of all underwriting discounts and commissions.
Section 5. Expenses of Registration. All reasonable expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings, or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers and printing fees, accounting fees, and fees and disbursements
of counsel for the Company shall be borne by the Company.
Section 6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and hereby
does, indemnify, hold harmless, and defend each Investor who holds
such Registrable Securities, the directors, officers, partners,
employees, agents, and each Person, if any, who controls any
Investor within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and any
underwriter (as defined in the 0000 Xxx) for the Investors, and the
directors and officers of, and each Person, if any, who controls,
any such underwriter within the meaning of the 1933 Act or the 1934
Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs,
attorneys' fees, amounts paid in settlement or expenses, joint or
several, (collectively, "Claims") incurred in investigating,
preparing, or defending any action, claim, suit, inquiry,
proceeding, investigation, or appeal taken from the foregoing by or
before any court or governmental, administrative, or other
regulatory agency, body or the SEC, whether pending or threatened,
whether or not an indemnified party is or may be a party thereto
("Indemnified Damages"), to which any of them may become subject
insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material
fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification
of the offering under the securities or other "blue sky" laws of any
jurisdiction in which Registrable Securities are offered ("Blue Sky
Filing"), or the omission or alleged omission to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which the
statements therein were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained
in any preliminary prospectus if used prior to the effective date of
such Registration Statement, or contained in the final prospectus
(as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or
alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, or,
(iii) any violation or alleged violation by the Company of the 1933
Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities pursuant to a
Registration Statement (the matters in the foregoing clauses (i)
through (iii) being, collectively, "Violations"). Subject to the
restrictions set forth in Section 6(d) with respect to the number of
legal counsel, the Company shall reimburse the Investors and each
such underwriter or controlling person, promptly as such expenses
are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything
to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim
arising out of or based upon a Violation which occurs in reliance
upon and in
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conformity with information furnished in writing to the Company by any
Indemnified Person or underwriter for such Indemnified Person expressly
for use in connection with the preparation of the Registration Statement
or any such amendment thereof or supplement thereto, if such prospectus
was timely made available by the Company pursuant to Section 3(c); (ii)
with respect to any preliminary prospectus, shall not inure to the benefit
of any such person from whom the person asserting any such Claim purchased
the Registrable Securities that are the subject thereof (or to the benefit
of any person controlling such person) if the untrue statement or mission
of material fact contained in the preliminary prospectus was corrected in
the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(c), and the
Indemnified Person was promptly advised in writing not to use the
incorrect prospectus prior to the use giving rise to a violation and such
Indemnified Person, notwithstanding such advice, used (iii) shall not be
available to the extent such Claim is based on a failure of the Investor
to deliver or to cause to be delivered the prospectus made available by
the Company, and (iv) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
the Company, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall
survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.
(b) In connection with any Registration Statement in which an Investor
is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and
in the same manner as is set forth in Section 6(a), the Company,
each of its directors, each of its officers who signs the
Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act
(collectively and together with an Indemnified Person, an
"Indemnified Party"), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934
Act, or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case to the
extent, and only to the extent, that such Violation occurs in
reliance upon and in conformity with written information furnished
to the Company by such Investor expressly for use in connection with
such Registration Statement; and, subject to Section 6(d), such
Investor will reimburse any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such Claim; provided however, that the indemnity agreement contained
in this Section 6(b) and Section 7 shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent shall not
be unreasonably withheld; provided further however, that the
Investor shall be liable under this Section 6(b) for only that
amount of a Claim or Indemnified Damages as does not exceed the net
proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and
shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained
in this Section 6(b) with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Party if the
untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented.
(c) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers, and similar
securities industry professionals participating in any distribution,
to the same extent as provided above, with respect to information
such persons so furnished in writing expressly for inclusion in the
Registration Statement.
10
(d) Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a
Claim such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party, as the case may be;
provided however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel with the fees and expenses to be paid by
the indemnifying party, if, in the reasonable opinion of counsel retained by
the indemnifying party, the representation by such counsel of the Indemnified
Person or Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified
Person or Indemnified Party and any other party represented by such counsel
in such proceeding. The Company shall pay reasonable fees for only one
separate legal counsel for the Investors, and such legal counsel shall be
selected by the Investors holding a majority in interest of the Registrable
Securities included in the Registration Statement to which the Claim relates.
The Indemnified Party or Indemnified Person shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any such
action or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the Indemnified
Party or Indemnified Person which relates to such action or claim. The
indemnifying party shall keep the Indemnified Party or Indemnified Person
fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for
any settlement of any action, claim or proceeding effected without its
written consent, provided however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party
shall, without the consent of the Indemnified Party or Indemnified Person,
consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party or Indemnified Person
of a release from all liability in respect to such claim or litigation.
Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Indemnified Party or Indemnified
Person with respect to all third parties, firms, or corporations relating to
the matter for which indemnification has been made. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of
any liability to the Indemnified Person or Indemnified Party under this
Section 6, except to the extent that the indemnifying party is prejudiced in
its ability to defend such action.
(e) The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified
Damages are incurred.
(f) The indemnity agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
Section 7. Contribution. To the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect
11
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided however, that: (i) no contribution
shall be made under circumstances where the maker would not have been liable
for indemnification under the fault standards set forth in Section 6; (ii) no
seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation, and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable
Securities.
Section 8. Reports Under The 1934 Act. With a view to making available to
the Investors the benefits of Rule 144 promulgated under the 1933 Act or any
other similar rule or regulation of the SEC that may at any time permit the
investors to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements (it being understood that
nothing herein shall limit the Company's obligations under Section 4.b of the
Exchange Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and
(c) furnish to each Investor so long as such Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the 1933
Act, and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to
permit the investors to sell such securities pursuant to Rule 144 without
registration.
Section 9. Assignment of Registration Rights. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assignable by the Investors to any transferee of all or any
portion of Registrable Securities if: (i) the Investor agrees in writing with
the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such transfer
or assignment, furnished with written notice of (A) the name and address of
such transferee or assignee, and (B) the securities with respect to which
such registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act and
applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein; (v) such transfer shall have been made in
accordance with the applicable requirements of the Exchange Agreement; (vi)
such transferee shall be an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the 1933 Act; and (vii) in the
event the assignment occurs subsequent to the date of effectiveness of the
Registration Statement required to be filed pursuant to Section 2(a), the
transferee agrees to pay all reasonable expenses of amending or supplementing
such Registration Statement to reflect such assignment.
Section 10. Amendment of Registration Rights. Provisions of this Agreement
may be amended and the observance thereof may be waived (either generally or
in a particular instance and either
12
retroactively or prospectively), only with the written consent of the Company
and Investors who hold two-thirds of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 10 shall be
binding upon each Investor and the Company.
Section 11. Miscellaneous.
(a) A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record such Registrable Securities.
If the Company receives conflicting instructions, notices, or elections from
two or more persons or entities with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice, or
election received from the registered owner of such Registrable Securities.
(b) Any notices consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile, provided a copy is
mailed by U.S. certified mail, return receipt requested; (iii) three (3) days
after being sent by U.S. certified mall, return receipt requested, or (iv)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.
The addresses and facsimile numbers for such communications shall be:
If to the Company:
Cambex Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to a Purchaser, to its address and facsimile number on the Schedule of
Purchasers, with copies to such Purchaser's counsel as set forth on the
Schedule of Purchasers. Each party shall provide five (5) days prior written
notice to the other party of any change in address or facsimile number.
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, irrespective of the
choice of law provisions thereof. The parties agree that any action
brought by one party against the other shall be in any appropriate
13
state court or any federal Court located in the County where the party
against whom the action is brought is principally located, and both
parties agree that such courts shall have exclusive jurisdiction of such
case or controversy arising under or in connection with this Agreement and
shall be a proper forum in which to adjudicate such case or controversy.
The parties consent to the jurisdiction of such courts.
(e) This Agreement and the Exchange Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
and thereof. There are no restrictions, promises, warranties, or
undertakings, other than those set forth or referred to herein and therein.
This Agreement supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof.
(f) Subject to the requirements of Section 9, this Agreement shall inure to
the benefit and of and be binding upon the permitted successors and assigns
of each of the parties hereto.
(g) The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in two or more identical counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this
Agreement.
(i) Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments, and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
14
COMPANY SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
COMPANY:
CAMBEX CORPORATION
By: /s/ Xxxxxx X. Xxxx
President
[Purchasers' Signatures on Following Pages]
15
PURCHASER SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER:
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
Purchaser Name ("Purchaser")
Address and
Facsimile Number
SOVCAP EQUITY PARTNERS, LTD.
Xxxxxxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
P.O. Box N-10818
Nassau, New Providence
The Bahamas
000-000-0000
Securities Purchased
$2,517,800
Purchase Price
$17.10 per share
Purchaser's Legal Counsel
Address and
Facsimile Number
