EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of November 30, 2004 by
and between SiVault Systems, Inc. ("SiVault"), a Nevada corporation with offices
at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, and Viaquo
Corporation, a Delaware corporation with a principal place of business at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 ("Viaquo").
RECITALS
WHEREAS, SiVault and Viaquo are parties to that certain Agreement for
Purchase and Sale of Assets of even date herewith (the "Asset Purchase
Agreement");
WHEREAS, in order to induce Viaquo to enter into the Asset Purchase
Agreement, SiVault hereby agrees that this Agreement shall govern the rights of
Viaquo to register for public trade the Purchase Price Shares (as defined in the
Asset Purchase Agreement) issued and/or issuable to Viaquo under the Asset
Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. SiVault covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(c) The term "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration
statement or document.
(d) The term "Registrable Securities" means the 3,050,000
Purchase Price Shares (as such term is defined in the Asset Purchase
Agreement), as adjusted for any stock splits, stock dividends,
combinations, subdivisions, recapitalizations or the like;
excluding, however, any Registrable Securities sold by Viaquo in a
transaction in which Viaquo's rights under this Section 1 are not
assigned.
(e) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Piggy-Back Registration. SiVault shall, subject to the
provisions of Sections 1.3 and 1.6 below and Section 2.2(b) of the Asset
Purchase Agreement, use its best efforts to register the Registrable Securities
pursuant to Form SB-2 (or such other form as it is eligible to use) as soon as
practicable following the date hereof.
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1.3 Registration Procedures. SiVault shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC a registration statement or an
amendment to a registration statement previously filed with respect to
the resale of such Registrable Securities and continuously use its best
efforts to cause such registration statement to become effective and,
upon the request of Viaquo, keep such registration statement effective
for a period of two years or until the distribution contemplated in the
Registration Statement has been completed.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with
such registration statement as may be necessary to keep such
registration statement effective.
(c) Furnish to Viaquo such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Act, and such other documents as Viaquo may reasonably request
in order to facilitate the public sale or other disposition of
Registrable Securities owned by Viaquo.
(d) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by Viaquo in writing; provided that SiVault shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions, unless SiVault is already
subject to service in such jurisdiction and except as may be required
by the Act.
(e) In the event of any underwritten public offering, select an
underwriter and enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter of such offering. If Viaquo participates in any such
underwriting, Viaquo shall also enter into and perform its obligations
under such an agreement.
(f) Notify Viaquo at any time when a prospectus relating to such
Registration Statement is required to be delivered under the Act of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective
date of such registration.
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1.4 Furnish Information.
Viaquo shall furnish to SiVault in writing such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
registration of such the Registrable Securities.
1.5 Expenses of Piggy-Back Registration. SiVault shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.2, including (without limitation) all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the fees and disbursements of counsel for SiVault.
SiVault will pay the reasonable fees and disbursements of one counsel for Viaquo
selected by Viaquo up to and not exceeding a maximum amount of $10,000, but
excluding underwriting discounts and commissions relating to Registrable
Securities.
1.6 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of SiVault's capital stock, SiVault shall
not be required under Section 1.2 to include any of Viaquo's securities in such
underwriting unless Viaquo accepts the terms of the underwriting as agreed upon
between SiVault and the underwriters selected by it (or by other persons
entitled to select the underwriters). If the total amount of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the amount of securities sold that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then SiVault shall be required to include in the offering only that
number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among the
selling shareholders according to the total amount of securities entitled to be
included therein owned by each selling shareholder or in such other proportions
as shall mutually be agreed to by such selling shareholders). For purposes of
the preceding parenthetical concerning apportionment, shareholders of Viaquo
shall be deemed to be a single "selling shareholder," and any pro-rata reduction
with respect to such "selling shareholder" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "selling shareholder," as defined in this sentence.
If Viaquo disapproves of the terms of any such underwriting, Viaquo may elect to
withdraw therefrom by written notice to SiVault and the underwriter, delivered
at least twenty (20) days prior to the effective date of the registration
statement.
1.7 Delay of Registration. Viaquo shall have no right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
3
(a) To the extent permitted by law, SiVault will indemnify and hold
harmless Viaquo, the officers and directors of ViaQuo, any underwriter
(as defined in the Act) for Viaquo and each person, if any, who
controls Viaquo or underwriter within the meaning of the Act, against
any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Act, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement under which such Registrable Securities were registered,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or (ii) the omission
or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading in light of the circumstances when made,; and SiVault will
pay to Viaquo and to each such officer, director, underwriter or
controlling person, as reasonably incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection
1.8(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected
without the consent of SiVault (which consent shall not be unreasonably
withheld or delayed), nor shall SiVault be liable in any such case for
any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon: (i) a Violation which occurs in
reasonable reliance upon and in conformity with written information
furnished expressly for use specifically in connection with such
registration by Viaquo or by any such shareholder, officer, director,
underwriter or controlling person; (ii) a Violation resulting from
failure by Viaquo to send or deliver a copy of the final prospectus
delivered by SiVault to Viaquo with or prior to the delivery of written
confirmation of the sale by Viaquo to the person asserting the claim
from which such damages arise, or (iii) A Violation resulting from an
untrue statement or alleged untrue statement in any preliminary
prospectus or omission or alleged omission to state therein a material
fact if the final prospectus would have corrected such untrue statement
or alleged untrue statement or such omission or alleged omission.
(b) To the extent permitted by law, Viaquo will, if Registrable
Securities held by Viaquo are included in the securities as to which
such registration qualifications or compliance is being effected,
indemnify and hold harmless SiVault, each of its directors, each of its
officers who has signed the registration statement and each person, if
any, who controls SiVault within the meaning of the Act, any
underwriter, any other shareholder selling securities in such
registration statement, any of such other shareholders' partners,
directors and officers and any controlling person of any such
underwriter or other shareholder, against any losses, claims, damages,
or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) 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 reasonable reliance upon and in conformity
with written information furnished by Viaquo expressly for use in
connection with such registration; and Viaquo will pay, as incurred,
any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.8(b), in connection
with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of Viaquo, which consent
shall not be unreasonably withheld or delayed.
4
(c) Promptly after receipt by an indemnified party under this
Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 1.8, 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
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the indemnifying party if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing and conflicting interests between such indemnified party and
any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying
party of any liability under this Section 1.8 with respect to such
action, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 1.8.
(d) If the indemnification provided for in this Section 1.8 is held
by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage,
or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability,
claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission; provided that no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will
be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions
in the underwriting agreement shall control.
5
(f) The obligations of SiVault and Viaquo under this Section 1.8
shall survive the completion of any offering of Registrable Securities
in a registration statement under this Section 1, and otherwise.
1.9 Market Stand-Off. Viaquo hereby agrees that the Registrable
Securities shall be subject to the market stand-off provisions set forth in
Section 5.2 of the Asset Purchase Agreement.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure exclusively to the benefit of
and be binding upon the respective successors and assigns of the parties.
Notwithstanding anything to the contrary contained herein, Viaquo may, at its
sole expense, assign, without the consent of SiVault, any of its rights or
obligations hereunder to any permitted transferee of Registrable Securities,
provided that such transfer is effected in compliance with applicable securities
laws and that, if requested by SiVault, Viaquo will deliver to SiVault an
opinion of counsel reasonably satisfactory to SiVault that the transfer of the
Registrable Securities has been effected in compliance with applicable
securities laws. For purposes hereof "permitted transferee" shall include any
affiliate, shareholder or current or past employee of Viaquo. Except as
contemplated by the foregoing sentence or Section 1.8, nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
2.3 Counterparts. This Agreement may be executed by facsimile in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. Any notice or reports required or permitted to be given
under this Agreement shall be given in writing and shall be delivered by
personal delivery, telegram, facsimile transmission or by certified or
registered mail, postage prepaid, return receipt requested. Notice shall be
deemed given upon actual receipt. Any party and any representative designated
below may, by notice to the others, change its address for receiving such
notices:
6
To Viaquo at: Viaquo Corporation
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx
00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
To SiVault at: SiVault Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Facsimile: 000-000-0000
with copy to: Xxxxx X. Xxxx, Esq.
Xxxx & Xxxxxxx LLP
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
2.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of both SiVault and Viaquo. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon any future holder of any Registrable Securities and SiVault.
2.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
2.9 Entire Agreement; Amendment; Waiver. This Agreement (including
the Exhibits hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
VIAQUO CORPORATION SIVAULT SYSTEMS, INC.
By: __________________________ By: ___________________________
Name:__________________________ Name:___________________________
Title: ________________________ Title: _________________________
[SIGNATURE PAGE TO SIVAULT - VIAQUO REGISTRATION RIGHTS AGREEMENT]
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