EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of February 28, 2005, by and among Patron Systems, Inc., a
Delaware corporation (the "COMPANY") and each purchaser signatory hereto (each a
"PURCHASER" and collectively, the "PURCHASERS").
This Agreement is made pursuant to the Subscription Agreement, dated as
of the date hereof, by and between the Company and the Purchaser (the
"SUBSCRIPTION AGREEMENT"), submitted in accordance with and subject to the terms
and conditions described in the Subscription Agreement and the Amended
Confidential Information Memorandum of the Company dated as of February 16,
2005, as amended or supplemented from time to time, including all documents
incorporated by reference therein and all attachments, schedules and exhibits
thereto (the "PPM"), relating to the offering (the "OFFERING") by the Company,
on a reasonable efforts, all or nothing basis" of $3,000,000 aggregate principal
amount of 10% senior convertible promissory notes of the Company (the "NOTES")
and an option to sell up to an additional $500,000 aggregate principal amount of
Notes to cover over-subscriptions, if any.
The Company and the Purchasers hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein that are defined in the PPM and/or the Subscription Agreement shall have
the meanings given such terms in such documents. As used in this Agreement, the
following terms shall have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means common stock of the Company, $0.01 par value per
share.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in SECTION
2(A).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FILING DATE" means May 1, 2005.
"HOLDER" or "HOLDERS" means the holder or holders, as the case may be,
from time to time of Registrable Securities (including any permitted assignee).
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 5(C).
"INDEMNIFYING PARTY" shall have the meaning set forth in SECTION 5(C).
"LOSSES" shall have the meaning set forth in SECTION 5(A).
"PROCEEDING" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"REGISTRABLE SECURITIES" means all (i) shares of Common Stock issued
upon any conversion or exchange of the Notes including, without limitation, any
shares of Common Stock underlying securities issued upon any such conversion or
exchange of the Notes, (ii) the Warrant Shares and (iii) any shares of Common
Stock issued or issuable upon any stock split, dividend or other distribution,
recapitalization pursuant to anti-dilution provisions or similar event with
respect to the foregoing or in connection with any provisions in the Warrants.
"REGISTRATION STATEMENT" means the registration statements required to
be filed hereunder (which, at the Company's option, may be an existing
registration statement of the Company previously filed with the Commission, but
not declared effective), including (in each case) the Prospectus, amendments and
supplements to the registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in the registration
statement.
"RULE 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"RULE 424" means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TRADING DAY" means (i) a day on which the Common Stock is traded on a
Trading Market on which it is listed, or (ii) if the Common Stock is not listed
on a Trading Market, a day on which the Common Stock is traded on the
over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if
trades of the Common Stock are not reported by the OTC Bulletin Board, a day on
which the Common Stock is quoted in the over-the-counter market as reported by
the National Quotation Bureau Incorporated (or any similar organization or
agency succeeding to its functions or reporting prices); provided that in the
event that the Common Stock is not listed or quoted as set forth in (i), (ii)
and (iii) hereof, then Trading Day shall mean a Business Day.
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"TRADING MARKET" means the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market, the Nasdaq SmallCap Market or the Over-the-Counter Market.
"WARRANTS" means the Common Stock purchase warrants issued or issuable
to the Purchasers pursuant to the terms of the Subscription Agreement including,
without limitation, any Extended Period Warrants, Conversion Warrants and/or
Penalty Warrants (as such terms are defined in the Notes).
"WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the Warrants.
2. REGISTRATION.
(a) MANDATORY REGISTRATION. In the event that all of the
Registrable Securities have not been included in a Registration Statement
declared effective by the Commission, prior to the Filing Date, with the further
condition that the Company has used its best efforts to maintain such
effectiveness, then, in the absence of the foregoing, the Company shall prepare
and file with the Commission, no later than the Filing Date, a Registration
Statement covering the resale of all of the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415. The Registration
Statement required hereunder shall be on Form SB-1, Form SB-2 or Form S-3
(except if the Company is not then eligible to register for resale the
Registrable Securities on Form SB-1, Form SB-2 or Form S-3, in which case the
Registration shall be on another appropriate form in accordance herewith). The
Registration Statement required hereunder shall contain the Plan of
Distribution, attached hereto as ANNEX A (which may be modified to respond to
comments, if any, received by the Commission). The Company shall cause the
Registration Statement to become effective and remain effective as provided
herein. The Company shall use its best efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof and shall use its best efforts to keep the
Registration Statement continuously effective under the Securities Act until the
earlier of the date when all Registrable Securities covered by the Registration
Statement (a) have been sold pursuant to the Registration Statement or an
exemption from the registration requirements of the Securities Act or (b) may be
sold pursuant to Rule 144(k) (the "EFFECTIVENESS PERIOD").
(b) PIGGYBACK REGISTRATIONS RIGHTS. If, at any time
during the Effectiveness Period, the Company shall determine to prepare and file
with the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, including without limitation, in connection with the registration of
the Company's securities in a Follow-On Financing, other than on Form S-4 or
Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity 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, then the Company
shall include in such registration statement all of such Registrable Securities;
PROVIDED, HOWEVER, that (i) if, at any time after giving written notice of is
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
determines for any reason not to proceed with such registration, the Company
shall be relieved of its obligation to register any Registrable Securities in
connection with
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such registration, and (ii) in case of a determination by the Company to delay
registration of its securities, the Company will be permitted to delay the
registration of Registrable Securities for the same period as the delay in
registering such other securities.
3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations hereunder, the Company shall:
(a) Not less than five (5) business days prior to the
filing of the Registration Statement or any related Prospectus or any amendment
or supplement thereto, furnish to the Holders a draft of the Registration
Statement.
(b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
and the Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; and (iii) respond to
any comments received from the Commission with respect to the Registration
Statement or any amendment thereto.
(c) Notify the Holders of Registrable Securities to be
sold as promptly as reasonably possible: (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the Registration Statement
is proposed to be filed; (B) when the Commission notifies the Company whether
there will be a "review" of the Registration Statement and whenever the
Commission comments in writing on the Registration Statement (the Company shall
upon request provide true and complete copies thereof and all written responses
thereto to each of the Holders, subject, if appropriate, to the execution of
confidentiality agreements in form acceptable to the Company); and (C) with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (v) of the occurrence of any
event or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any statement made in
the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any 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.
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(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of
the Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) Promptly deliver to each Holder no later than five
(5) business days after the Effectiveness Date, without charge, two (2) copies
of the Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto (and, upon the request of the Holder such
additional copies as such Persons may reasonably request in connection with
resales by the Holder of Registrable Securities). The Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by the
Holder in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except after
the giving of any notice pursuant to SECTION 3(C).
(f) Prior to any resale of Registrable Securities by a
Holder, use its best efforts to register or qualify or cooperate with the
selling Holders in connection with the registration or qualification (or
exemption from the registration or qualification) of such Registrable Securities
for the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests in
writing, to keep such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other acts or
things reasonably necessary to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement; PROVIDED,
HOWEVER, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified, subject itself
to any material tax in any such jurisdiction where it is not then so subject or
file a general consent to service of process in any such jurisdiction.
(g) Upon the occurrence of any event contemplated by
SECTION 3(C)(V), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an 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 under which they were made,
not misleading.
(h) Use its best efforts to comply with all applicable
rules and regulations of the Commission relating to the registration of the
Registrable Securities pursuant to the Registration Statement or otherwise.
(i) The Company agrees that the Selling Shareholder
Questionnaire attached hereto as EXHIBIT A, satisfies all of the information
required to be provided by each Holder in connection with the Registration
Statement. The Company shall not be required to include any Holder that does not
complete, date and execute a Selling Shareholder Questionnaire.
(j) The Company shall either (a) cause all the
Registrable Securities covered by a Registration Statement to be listed on each
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
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Registrable Securities is then permitted under the rules of such exchange, or
(b) secure designation and quotation of all the Registrable Securities covered
by the Registration Statement on the Nasdaq National Market or the Nasdaq
SmallCap Market, or, (c) if the Company is unsuccessful in satisfying the
preceding clauses (a) or (b), the Company shall secure the inclusion for
quotation on The American Stock Exchange, Inc. or if it is unable to, the Over
The Counter Bulletin Board for such Registrable Securities and, without limiting
the generality of the foregoing, to arrange for at least two (2) 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(J).
(k) The Company covenants that it shall file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder so long as any Holder owns
any Registrable Securities; PROVIDED, HOWEVER, the Company may delay any such
filing but only pursuant to Rule 12b-25 under the Exchange Act, and the Company
shall take such further reasonable action as the Holder may reasonably request
(including, without limitation, promptly obtaining any required legal opinions
from Company counsel necessary to effect the sale of Registrable Securities
under Rule 144 and paying the related fees and expenses of such counsel), all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to
the Registration Statement, other than fees and expenses of counsel or any other
advisor retained by the Holders and discounts and commissions with respect to
the sale of any Registrable Securities by the Holders. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the Trading Market on which
the Common Stock is then listed for trading, and (B) in compliance with
applicable state securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is reasonably requested by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement.
5. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents and employees of it, each Person
who controls such Holder (within the meaning
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of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling Person, to
the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorneys' fees) and expenses (including the cost (including without
limitation, reasonable attorneys' fees) and expenses relating to an Indemnified
Party's actions to enforce the provisions of this SECTION 5) (collectively,
"LOSSES"), as incurred, to the extent arising out of or relating to any untrue
or alleged untrue statement of a material fact contained in the Registration
Statement, any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (1) such untrue statements or omissions are based
solely upon information regarding such Holder furnished (or in the case of an
omission, not furnished) in writing to the Company by or on behalf of such
Holder expressly for use therein, or to the extent that such information relates
to such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto (it being understood that
the Holder has approved Annex A hereto for this purpose), (2) in the case of an
occurrence of an event of the type specified in SECTION 3(C)(II)-(V), the use by
such Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or defective and
prior to the receipt by such Holder of the Advice contemplated in SECTION 6(B),
or (3) the failure of the Holder to deliver a prospectus prior to the
confirmation of a sale. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
(b) INDEMNIFICATION BY HOLDER. The Holder shall indemnify
and hold harmless the Company, its directors, officers, agents and employees,
each Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling Persons, to the fullest extent permitted
by applicable law, from and against all Losses, as incurred, to the extent
arising out of or based upon: (x) the Holder's failure to comply with the
prospectus delivery requirements of the Securities Act or (y) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or any form of prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading (i) to
the extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished (or in the case of an omission, not
furnished) in writing by or on behalf of such Holder to the Company specifically
for inclusion in the Registration Statement or such Prospectus or (ii) to the
extent that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished (or in the case of an omission, not
furnished) in writing to the Company by or on behalf of such Holder expressly
for use therein, or to the extent that such information relates to such Holder
or such Holder's proposed method of distribution of Registrable Securities, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto,
or (2) in the
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case of an occurrence of an event of the type specified in SECTION 3(C)(II)-(V),
the use by such Holder of an outdated or defective Prospectus after the Company
has notified such Holder in writing that the Prospectus is outdated or defective
and prior to the receipt by such Holder of the Advice contemplated in SECTION
6(B), or (3) the failure of the Holder to deliver a Prospectus prior to the
confirmation of a sale. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder from the sale of the Registrable Securities sold by it.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an "INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify
the Person from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing,
and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; PROVIDED, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that
such failure shall have materially prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of one
separate counsel for all Indemnified Parties in any matters related on a factual
basis shall be at the expense of the Indemnifying Party). The Indemnifying Party
shall not be liable for any settlement of any such Proceeding affected without
its written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
All reasonable fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Trading Days of written notice thereof to the
Indemnifying Party; PROVIDED, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not entitled to
indemnification hereunder, determined based upon the relative faults of the
parties.
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(d) CONTRIBUTION. If a claim for indemnification under
SECTION 5(A) or SECTION 5(B) is unavailable to an Indemnified Party (by reason
of public policy or otherwise), 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 such Losses, in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in SECTION 5(C), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this SECTION 5(D) were 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 immediately preceding paragraph.
Notwithstanding the provisions of this SECTION 5(D), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud by
such Holder.
The indemnity and contribution agreements contained in this Section are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. MISCELLANEOUS.
(a) COMPLIANCE. The Holder covenants and agrees that it
will comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(b) DISCONTINUED DISPOSITION. The Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a notice from
the Company of the occurrence of any event of the kind described in SECTION
3(C), such Holder will forthwith discontinue disposition of such Registrable
Securities under the Registration Statement until such Holder's receipt of the
copies of the supplemented Prospectus and/or amended Registration Statement or
until it is advised in writing (the "ADVICE") by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has received copies
of any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement. The
Company may provide appropriate stop orders to enforce the provisions of this
paragraph.
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(c) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and each Holder of the then outstanding Registrable
Securities.
(d) NOTICES. Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (ii) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
delivered and addressed as set forth in the Subscription Agreement.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of the Holder.
(f) EXECUTION. By execution of the Subscription
Agreement, each Purchaser agrees to all terms and conditions set forth in this
Agreement as if such Purchaser had executed this Agreement directly.
(g) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
without regard to the conflicts of laws principles thereof. The parties hereto
hereby irrevocably agree that any suit or proceeding arising directly and/or
indirectly pursuant to or under this Agreement, shall be brought solely in a
federal or state court located in the City, County and State of New York. By its
execution hereof, the parties hereby covenant and irrevocably submit to the IN
PERSONAM jurisdiction of the federal and state courts located in the City,
County and State of New York and agree that any process in any such action may
be served upon any of them personally, or by certified mail or registered mail
upon them or their agent, return receipt requested, with the same full force and
effect as if personally served upon them in New York City. The parties hereto
waive any claim that any such jurisdiction is not a convenient forum for any
such suit or proceeding and any defense or lack of IN PERSONAM jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements.
(h) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10
(j) REMEDIES. In the event of a breach by the Company or
by a Holder, of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(k) INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND
RIGHTS. The obligations of each Purchaser hereunder are several and not joint
with the obligations of any other Purchaser hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement, on behalf of the Company as of the date first written above.
PATRON SYSTEMS, INC
By: /S/ XXXXXX X. XXX XX
-------------------------------
Name: Xxxxxx X. Xxx XX
Title: Chairman
SEE OMNIBUS SIGNATURE PAGE FOR PURCHASERS' SIGNATURES
12
ANNEX A
PLAN OF DISTRIBUTION
The holders of Registrable Securities (the "SELLING STOCKHOLDERS") and
any of their pledgees, assignees and successors-in-interest may, from time to
time, sell any or all of their shares of Common Stock on any stock exchange,
market or trading facility on which the shares are traded or in private
transactions. These sales may be at fixed or negotiated prices. The Selling
Stockholders may use any one or more of the following methods when selling
shares:
o ordinary brokerage transactions and transactions in which the
broker/dealer solicits purchasers;
o block trades in which the broker/dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker/dealer as principal and resale by the
broker/dealer for its account;
o an exchange distribution in accordance with the Rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales;
o broker/dealers may agree with the Selling Stockholders to sell
a specified number of such shares at a stipulated price per
share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker/dealers engaged by the Selling Stockholders may arrange for
other brokers/dealers to participate in sales. Broker/dealers may receive
commissions from the Selling Stockholders (or, if any broker/dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions to exceed
what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock owned by them
and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock from
time to time under this prospectus, or under an amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of Selling Stockholders to include the pledgee,
transferee or other successors in interest as Selling Stockholders under this
prospectus.
The Selling Stockholders and any broker/dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker/dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions under the Securities Act. The Selling Stockholders have informed the
Company that it does not have any agreement or understanding, directly or
indirectly, with any person to distribute the Common Stock.
The Company is required to pay all fees and expenses incident to the
registration of the shares. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
EXHIBIT A
SELLING STOCKHOLDER QUESTIONNAIRE
Patron Systems, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
I acknowledge that I am a holder of securities of Patron Systems, Inc.
(the "COMPANY"). I understand that I will be named as a selling stockholder in
the prospectus that forms a part of the registration statement on Form S-1 (or
other applicable form) that the Company will file with the Securities and
Exchange Commission to register under the Securities Act of 1933, as amended,
the securities I expect to sell. The Company will use the information that I
provide in this Questionnaire to ensure the accuracy of the registration
statement and the prospectus.
--------------------------------------------------------------------------------
PLEASE ANSWER EVERY QUESTION.
IF THE ANSWER TO ANY QUESTION IS "NONE" OR "NOTAPPLICABLE," PLEASE SO STATE.
--------------------------------------------------------------------------------
1. NAME. Type or print your name exactly as it should appear in the
Registration Statement.
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2. CONTACT INFORMATION. Provide the address, telephone number and fax
number where you can be reached during business hours.
ADDRESS:
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PHONE:
--------------------------------------------------------------
FAX:
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3. RELATIONSHIP WITH THE COMPANY. Describe the nature of any position,
office or other material relationship you have had with the Company
during the past three years.
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4. ORGANIZATIONAL STRUCTURE. Please indicate or (if applicable) describe how you
are organized.
(a) Are you a NATURAL PERSON? |_| Yes |_| No
(IF SO, PLEASE XXXX THE BOX AND SKIP TO QUESTION 5)
(b) Are you a REPORTING COMPANY
under the 1934 Act? |_| Yes |_| No
(IF SO, PLEASE XXXX THE BOX AND SKIP TO QUESTION 5)
(c) Are you a MAJORITY-OWNED SUBSIDIARY
of a reporting company under the
1934 Act? |_| Yes |_| No
(IF SO, PLEASE XXXX THE BOX AND SKIP TO QUESTION 5)
(d) Are you a REGISTERED INVESTMENT FUND
under the 1940 Act? |_| Yes |_| No
(IF SO, PLEASE XXXX THE BOX AND SKIP TO QUESTION 5)
If you have answered "no" to all of the foregoing questions, please describe:
(i) the exact legal description of your entity (e.g., corporation, partnership,
limited liability company, etc.); (ii) whether the legal entity so described is
managed by another entity and the exact legal description of such entity (repeat
this step until the last entity described is managed by a person or persons,
each of whom is described in any one of (a) through (d) above), (iii) the names
of each person or persons having voting and investment control over the
Company's securities that the entity owns (e.g., director(s), general
partner(s), managing member(s), etc.).
LEGAL DESCRIPTION OF ENTITY:
----------------------------------------------------
NAME OF ENTITY(IES) MANAGING SUCH ENTITY (IF ANY):
-----------------------------
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NAME OF ENTITY(IES) MANAGING SUCH ENTITY(IES) (IF ANY):
------------------------
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NAME(S) OF NATURAL PERSONS HAVING VOTING OR INVESTMENT
CONTROL OVER THE SHARES HELD BY SUCH ENTITY(IES):
------------------------------
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5. OWNERSHIP OF THE COMPANY'S SECURITIES. This question covers your
beneficial ownership of the Company's securities. Please consult the
APPENDIX A to this Questionnaire for information as to the meaning of
"beneficial ownership." State the number of shares of the Company's
common stock that you beneficially owned as of the date this
Questionnaire is signed:
NO. OF SHARES OF STOCK
------------------------------
6. ACQUISITION OF SHARES. Please describe below the manner in which you
acquired your shares of Common Stock of the Company including, but not
limited to, the date, the name and address of the seller(s), the
purchase price and pursuant to which documents (the "ACQUISITION
DOCUMENTS"). Please forward such documents used to acquire your shares
as provided below.
7. PLAN OF DISTRIBUTION. I have reviewed the proposed "Plan of
Distribution" attached to this Registration Rights Agreement as ANNEX
A, and agree that the statements contained therein reflect my intended
method(s) of distribution or, to the extent these statements are
inaccurate or incomplete, I have communicated in writing to one of the
parties listed above my signature on page 6 any changes to the proposed
"Plan of Distribution" that are required to make these statements
accurate and complete. |_|
(PLEASE CHECK THE BOX IF YOU HAVE MADE ANY CHANGES TO APPENDIX B)
8. RELIANCE ON RESPONSES. I acknowledge and agree that the Company and its
legal counsel shall be entitled to rely on my responses in this
Questionnaire in all matters pertaining to the registration statement
and the sale of any shares of common stock of the Company pursuant to
the registration statement.
9. NASD. The National Association of Securities Dealers, Inc. ("NASD") may
request, in connection with their review of the Registration Statement
and Prospectus under the Securities Act of 1933, as amended, that the
Company inform them of the names of all persons who purchased
securities from the Company, together with any affiliations with the
NASD of such purchasers. In order to aid the Company in responding to
such request, the undersigned furnishes the following information:
PART A: DETERMINATION OF RESTRICTED PERSON STATUS:
PLEASE CHECK ALL APPROPRIATE CATEGORIES.
The undersigned is:
___(i) a broker-dealer;
___(ii) an officer, director, general partner,
associated person (1) or employee of a
broker-dealer (other than a limited business
broker-dealer) (2);
___(iii) an agent of a broker-dealer (other than a
limited business broker-dealer) that is
----------
(1) A person "associated with" a broker-dealer includes any natural person
engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by a broker-dealer,
any partner, director, officer or sole proprietor of a broker-dealer.
(2) A limited business broker-dealer is any broker-dealer whose
authorization to engage in the securities business is limited solely to
the purchase and sale of investment company/variable contracts
securities and direct participation program securities.
engaged in the investment banking or
securities business;
___(iv) an immediate family member (3) of a person
described in (ii) or (iii) above. Under
certain circumstances, if the undersigned
checks this category, he/she/it may be able
to participate in New Issue investments. The
Company may request additional information
in order to determine the eligibility of the
undersigned under this Restricted Person
category;
___(v) a finder or any person acting in a fiduciary
capacity to a managing underwriter,
including, but not limited to, attorneys,
accountants and financial consultants;
___(vi) a person who has authority to buy or sell
securities for a bank, savings and loan
institution, insurance company, investment
company, investment advisor or collective
investment account (4) (including a private
investment vehicle such as a hedge fund or
an offshore fund);
___(vii) an immediate family member of a person
described in (v) or (vi) above who
materially supports (5), or receives
material support from, the undersigned;
___(viii) a person listed or required to be listed in
Schedule A, B or C of a Form BD (other than
with respect to a limited business
broker-dealer), except persons whose listing
on Schedule A, B or C is related to a person
identified by an ownership code of less than
10% on Schedule A;
___(ix) a person that (A) directly or indirectly
owns 10% or more of a public reporting
company listed, or required to be listed, in
Schedule A of a Form BD or (B) directly or
indirectly owns 25% or more of a public
reporting company listed, or required to be
listed in Schedule B of a Form BD, in each
case (A) or (B), other than a reporting
company that is listed on a national
securities exchange or is traded on the
Nasdaq National Market, or other than with
respect to a limited business broker/dealer;
___(x) an immediate family member of a person
described in (viii) or (ix) above. Under
certain circumstances, if the undersigned
places a check next to this category,
he/she/it may be able to participate in New
Issue investments. The Company may request
additional information in order to determine
the eligibility of the undersigned under
this Restricted Person category;
___(xi) any entity (including a corporation,
partnership, limited liability company,
trust or other entity) in which any person
or persons listed in (i)-(x) above has a
beneficial interest (6); or
___ None of the above categories apply and the
undersigned is eligible to participate in New Issue
securities.
----------
(3) The term "Immediate family" includes the lnvestor's: (i) parents, (ii)
mother-in-law or father-in-law. (iii) husband or wife, (iv) brother or
sister, (v) brother-in-law or sister-in-law, (vi) son-in-law or
daughter-in-law, (vii) children, and (viii) any other person who is
supported, directly or indirectly, to a material extent by an officer,
director, general partner, employee, agent of a broker-dealer or person
associated with a broker-dealer.
(4) A "collective investment account" is any hedge fund, investment
corporation, or any other collective investment vehicle that is engaged
primarily in the purchase and/or sale of securities. investment clubs
(groups of individuals who pool their money to invest in stock or other
securities and who are collectively responsible for making investment
decisions) and family investment vehicles (legal entities that are
beneficially owned solely by immediate family members (as defined
above)) are NOT considered collective investment accounts.
(5) The term "material" support" means directly or indirectly providing
more than 25% of a person's income in the prior calendar year or living
in the same household with a member of one's Immediate family.
(6) The term "beneficial interest" means any economic interest such as the
right to share in gains or losses. The receipt of a management or
performance based fee for operating a collective investment account, or
other fee for acting in a fiduciary capacity, is NOT considered a
beneficial interest in the account; however, if such fee is
subsequently invested into the account (as a deferred fee arrangement
or otherwise), it is considered a beneficial interest in that account.
PART B: DETERMINATION OF EXEMPTED ENTITY STATUS:
The undersigned is:
___(i) a publicly-traded entity (other than a
broker-dealer or an affiliate of a
broker-dealer, where such broker-dealer is
authorized to engage in the public offering
of New Issues either as a selling group
member or underwriter) that is listed on a
national securities exchange or traded on
the Nasdaq National Market or is a foreign
issuer whose securities meet the
quantitative designation criteria for
listing on a national securities exchange or
trading on the Nasdaq National Market;
___(ii) an investment company registered under the
Investment Company Act of 1940, as amended;
___(iii) a corporation, partnership, limited
liability company, trust or any other entity
(including a private investment vehicle such
as a hedge fund or an offshore fund, or a
broker-dealer organized as an investment
partnership) and
(A) the beneficial interests of
Restricted Persons do not exceed in the
aggregate 10% of such entity; or
(B) such entity limits participation by
Restricted Persons to not more than 10% of
the profits and losses of New Issues;
___(iv) an investment company organized under the
laws of a foreign jurisdiction and
(A) the investment company is listed on
a foreign exchange or authorized for sale to
the public by a foreign regulatory
authority; and
(B) no person owning more than 5% of
the shares of the investment company is a
Restricted Person;
___(v) (A) an employee benefits plan under the U.S.
Employee Retirement Income Security Act of
1974, as amended, that is qualified under
Section 401(a) of the Internal Revenue Code
of 1986, as amended (the "CODE") and such
plan is not sponsored solely by a
broker-dealer, (B) a state or municipal
government benefits plan that is subject to
state and/or municipal regulation or (C) a
church plan under Section 414(e) of the
Code;
___(vi) a tax exempt charitable organization under
Section 501(c)(3) of the Code;
___(vii) a common trust fund or similar fund as
described in Section 3(a)(12)(A)(iii) of the
Securities Exchange Act of 1934, as amended,
and the Company
(A) has investments from 1,000 or more
accounts, AND
(B) does not limit beneficial interests
in the Company principally to trust accounts
of Restricted Persons; or
___(viii) an insurance company general, separate or
investment account, and
(A) the account is funded by premiums
from 1,000 or more policyholders, or, if a
general account, the insurance company has
1,000 or more policyholders, AND
(B) the insurance company does not
limit the policyholders whose premiums are
used to fund the account principally to
Restricted Persons, or, if a general
account, the insurance company does not
limit its policyholders principally to
Restricted Persons.
Please acknowledge that your answers to the foregoing questions are
true and correct to the best of your information and belief by signing and
dating this Questionnaire where indicated below. Please return the completed
executed questionnaire VIA FAX to _____________________
_________________________________ AS SOON AS POSSIBLE.
If at any time you discover that your answer to any question was
inaccurate, or if any event occurring after your completion hereof would require
a change in your answer to any questions, please immediately contact
--------------------------------------------------------.
Date: , 200
-------------------- --------------------------------------------
(PRINT NAME OF SELLING STOCKHOLDER)
By:
-----------------------------------
(SIGNATURE)
Name:
-----------------------------------
(PRINT NAME)
Title:
-----------------------------------
APPENDIX A
1. DEFINITION OF "BENEFICIAL OWNERSHIP"
(a) A "Beneficial Owner" of a security includes any person who,
directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares:
(1) Voting power which includes the power to vote, or to
direct the voting of, such security; and/or
(2) Investment power which includes the power to dispose,
or direct the disposition of, such security.
Please note that EITHER voting power OR investment power, OR
both, is sufficient for you to be considered the beneficial
owner of shares.
(b) Any person who, directly or indirectly, creates or uses a
trust, proxy, power of attorney, pooling arrangement or any
other contract, arrangement or device with the purpose or
effect of divesting such person of beneficial ownership of a
security or preventing the vesting of such beneficial
ownership as part of a plan or scheme to evade the reporting
requirements of the federal securities acts shall be deemed to
be the beneficial owner of such security.
(c) Notwithstanding the provisions of paragraph (a), a person is
deemed to be the "beneficial owner" of a security, if that
person has the right to acquire beneficial ownership of such
security within 60 days, including but not limited to any
right to acquire: (A) through the exercise of any option,
warrant or right; (B) through the conversion of a security;
(C) pursuant to the power to revoke a trust, discretionary
account or similar arrangement; or (D) pursuant to the
automatic termination of a trust, discretionary account or
similar arrangement; provided, however, any person who
acquires a security or power specified in paragraphs (A), (B)
or (C) above, with the purpose or effect of changing or
influencing the control of the issuer, or in connection with
or as a participant in any transaction having such purpose or
effect, immediately upon such acquisition shall be deemed to
be the beneficial owner of the securities which may be
acquired through the exercise or conversion of such security
or power.
