EXHIBIT 10.13
LIGHTFIRST INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered into
as of the first day of May, 2001, by and between LightFirst Inc., a Delaware
corporation (the "Corporation"), and Xxxxxx X. Xxxxxxx (the "Stockholder").
RECITALS
A. The Stockholder has agreed to purchase 600,000 shares (the "Shares")
of the Corporation's Common Stock with the understanding that he will receive
securities registration rights with respect to the Shares.
B. The Corporation deems it desirable for the Corporation to grant
certain securities registration rights to the Stockholder in order to induce the
Stockholder to purchase the Shares.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENTS
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Common Stock" shall mean the common stock of the Corporation,
$0.001 par value per share.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated
thereunder.
(c) "Registrable Securities" shall mean at any time: (i) any
shares of Common Stock then outstanding which were issued
pursuant to the Common Stock Purchase Agreement, dated May 1,
2001, between the Corporation and the Stockholder; and (ii)
any shares of Common Stock issued or issuable with respect to
shares of Common Stock identified in subsection (i) by way of
stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable
Securities when they have: (x) been effectively registered
under the Securities Act and disposed of in accordance with
the Registration Statement covering them; (y) been sold to the
public in accordance with Rule 144 (or any similar provision
then in force) promulgated under the Securities Act; or (z)
been
otherwise transferred and new certificates for them not
bearing a restrictive legend have been delivered by the
Corporation.
(d) "Registration Expenses" shall mean all expenses incident to
the Corporation's performance of or compliance with this
Agreement, including, all registration, listing and filing
fees, registrars' and transfer agents' fees, fees and expenses
of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and
disbursements of counsel for the Corporation and all
independent certified public accountants (including the
expenses of any audits and "cold comfort" letters),
underwriters (including underwriter's counsel and the
preparation of any "blue sky" memorandum or surveys, but
excluding discounts and commissions) and other persons or
entities retained by the Corporation and reasonable fees and
expenses of a single legal counsel chosen by the Stockholder
and reasonably acceptable to the Corporation to represent the
Stockholder in connection with a Piggyback Registration (as
hereinafter defined).
(e) "Registration Statement" shall mean a registration statement
filed pursuant to the Securities Act on Form X-0, X-0, X-0,
XX-0 or SB-2 (but not on Form S-8 or any successor form) or
any similar registration statement pursuant to which the
Registrable Securities may be registered.
(f) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
2. PIGGYBACK REGISTRATION. As used in this Agreement, the following terms
shall have the following meanings:
2.1 RIGHT TO PIGGYBACK. If the Corporation determines to register
any of its securities either for its own account or the
account of a shareholder(s) exercising demand registration
rights (other than a registration relating solely to employee
benefit plans, or a registration relating solely to a
transaction pursuant to Rule 145 promulgated under the
Securities Act or a registration on any registration form
which does not permit secondary sales or does not include
substantially the same information as would be required to be
included in a Registration Statement covering the sale of the
Registrable Securities), the Corporation shall promptly give
to Stockholder written notice thereof and include in such
registration (and any related qualification under blue sky
laws), and in any underwriting involved therein, the number of
Registrable Securities specified in a written request made by
the Stockholder within ten (10) days after receipt of such
written notice from the Corporation.
2.2 PRIORITY ON REGISTRATIONS. If the registration of which the
Corporation gives notice is for a registered public offering
involving an underwriting, the Stockholder's right to
registration shall be conditioned upon (i) the Stockholder's
participation in such underwriting and (ii) the inclusion of
the Registrable Securities in the underwriting pursuant to an
underwriting agreement in customary form with the underwriter
or underwriters selected by the Corporation; provided,
however, that in the event of any
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reduction in the securities to be included in the
registration, the securities that may be included in the
registration and underwriting shall be allocated (1) first, to
the Corporation, and (2) second, among the Stockholder and the
other security holders distributing their securities through
such underwriting, in proportion (as nearly as practicable) to
the number of shares owned by each such party.
2.3 PIGGYBACK EXPENSES. All Registration Expenses incurred by the
Corporation or the Stockholder in connection with any
Piggyback Registration will be paid by the Corporation.
3. DEMAND REGISTRATIONS.
3.1 REQUESTS FOR REGISTRATION. Subject to the terms of this
Agreement, the Stockholder, at any time commencing one year
after the date the Corporation's first registration statement
filed pursuant to the Securities Act is declared effective by
the Securities and Exchange Commission, request that the
Corporation file a Registration Statement with respect to all
or part of their Registrable Securities. Within ten (10) days
after receipt of any such request, the Corporation will give
written notice of such request to all other holders and will
include in such registration all Registrable Securities with
respect to which the Corporation has received written requests
for inclusion therein within fifteen (15) days after the
receipt or refusal of receipt of the Corporation's notice. All
registrations requested pursuant to this Paragraph 3 are
referred to herein as "Demand Registrations."
3.2 NUMBER OF DEMAND REGISTRATIONS. The holders will be entitled
to request two (2) Demand Registrations pursuant to which the
Registrable Securities shall be registered and in which the
Corporation will pay all Registration Expenses. A registration
will not count as one of the permitted Demand Registrations
(i) until it has become effective (unless such Demand
Registration has not become effective due solely to the fault
of the holders requesting such registration) and (ii) unless
the holders are able to register at least ninety percent (90%)
of the Registrable Securities requested to be included in such
registration (unless such holders are not so able to register
such amount of the Registrable Securities due solely to the
fault of such Holders); provided, however, that in any event
the Corporation will pay all Registration Expenses in
connection with any registration initiated as a Demand
Registration.
3.3 PRIORITY ON DEMAND REGISTRATIONS. The Corporation will not
include in any Demand Registration any securities which are
not Registrable Securities without the written consent of the
Stockholder. If other securities are permitted to be included
in a Demand Registration which is an underwritten offering and
the managing underwriters advise the Corporation in writing
that in their opinion the number of Registrable Securities and
other securities requested to be included exceeds the number
of Registrable Securities and other securities which can be
sold in such offering, the Corporation will include in such
registration, prior to the inclusion of any securities which
are not Registrable Securities, the number of Registrable
Securities requested to be included which in the opinion of
such underwriters can be sold, pro
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rata among the respective holders on the basis of the amount
of Registrable Securities so requested to be included therein.
3.4 SELECTION OF UNDERWRITERS. The Corporation shall have the
right to select the investment banker(s) and manager(s) to
administer any Demand Registration.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered in a
Piggyback Registration pursuant to this Agreement, the Corporation will
use its reasonable efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Corporation will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission
(the "Commission") a Registration Statement with respect to
such Registrable Securities and use its best efforts to cause
such registration statement to become and remain effective for
such period as may be reasonably necessary to effect the sale
of such securities, not to exceed 180 days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such
Registration Statement effective for a period of not less than
six months and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered
by such Registration Statement during such period in
accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities and the
underwriters of the securities being registered such number of
copies of such Registration Statement, each amendment and
supplement thereto, the prospectus included in such
Registration Statement (including each preliminary prospectus)
and such other documents as such seller or underwriters may
reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller or the sale of
such securities by such underwriters;
(d) use its reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests
and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided,
however, that the Corporation will not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in
any such jurisdiction);
(e) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the
Corporation are then listed;
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(f) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of
such Registration Statement;
(g) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions
as the Stockholder or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of
the Registrable Securities being sold (including, without
limitation, effecting a stock split or a combination of
shares);
(h) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent
corporate documents and properties of the Corporation, and
cause the Corporation's officers, directors, employees and
independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration
Statement, including, without limitation, any earning
statement provided pursuant to Section 11(a) of the Securities
Act;
(i) notify each seller of such Registrable Securities, promptly
after it shall receive notice thereof, of the time when such
Registration Statement has become effective or a supplement to
any prospectus forming a part of such Registration Statement
has been filed; and
(j) notify each seller of such Registrable Securities of any
request by the Commission for the amending or supplementing of
such Registration Statement or prospectus or for additional
information;
(k) prepare and file with the Commission, promptly upon the
request of any seller of such Registrable Securities, any
amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel selected by the
Stockholder, is required under the Securities Act or the rules
and regulations thereunder in connection with the distribution
of Registrable Securities by such seller;
(l) prepare and promptly file with the Commission and promptly
notify each seller of such Registrable Securities of the
filing of such amendment or supplement to such Registration
Statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under
the Securities Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which
they were made, not misleading;
(m) advise each seller of such Registrable Securities, promptly
after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the Commission
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suspending the effectiveness of such Registration Statement or
the initiation or threatening of any proceeding for such
purpose and promptly use all reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
5. INDEMNIFICATION.
5.1 THE CORPORATION. The Corporation agrees to indemnify and hold
harmless, to the extent permitted by law, the Stockholder in
the event that the Stockholder includes any Registrable
Securities in a Piggyback Registration, its managers, officers
and directors and each person or entity who controls such
Stockholder (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expenses, as
incurred, arising out of, based upon or caused by any untrue
or alleged untrue statement of material fact contained or
required to be contained in any Registration Statement
(including all documents incorporated therein by reference),
prospectus or preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as
the same are caused by or contained in any information
furnished to the Corporation by the Stockholder in writing
expressly for use therein or which the Stockholder failed to
provide or by the Stockholder's failure to deliver a copy of
the Registration Statement or prospectus or any amendments or
supplements thereto after the Corporation has furnished the
Stockholder with a sufficient number of copies of the same or
which is otherwise attributable of the negligence or willful
misconduct of the Stockholder. In connection with an
underwritten offering, the Corporation will indemnify such
underwriters, their officers and directors and each person or
entity who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with
respect to the indemnification of the Stockholder.
5.2 THE STOCKHOLDER. In connection with any Registration Statement
in which the Stockholder is participating, each Stockholder
will furnish to the Corporation in writing, within 15 days
after request therefor, such information and affidavits as the
Corporation reasonably requests for use in connection with any
such Registration Statement or prospectus and agrees to
indemnify and hold harmless, to the extent permitted by law,
the Corporation, its directors and officers and each person or
entity who controls the Corporation (within the meaning of the
Securities Act), against any losses, claims, damages,
liabilities and expenses, as incurred, arising out of, based
upon or caused by any untrue or alleged untrue statement of
material fact contained or required to be contained in such
Registration Statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement
or omission or alleged untrue statement or alleged omission is
caused by or contained or required to be contained in any
information or affidavit so furnished or required to be so
furnished by the Stockholder or by the Stockholder's failure
to deliver a copy of the Registration Statement or prospectus
or any amendments or
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supplements thereto after the Corporation has furnished the
Stockholder with a sufficient number of copies of the same or
which is otherwise attributable to the negligence or willful
misconduct of the Stockholder. Notwithstanding the foregoing,
the obligation of the Stockholder to indemnify contained
herein will be several, not joint and several, among the
Stockholder and any other security holders distributing
securities pursuant to any Registration Statement, and the
liability of the Stockholder will be in proportion to and
limited to the net amount received by the Stockholder from the
sale of Registrable Securities pursuant to such Registration
Statement. In connection with an underwritten offering, the
Stockholder will indemnify such underwriters, their officers
and directors and each person or entity who controls such
underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the
indemnification of the Corporation.
5.3 NOTICE. Any person or entity entitled to indemnification
hereunder will: (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification; and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the
defense of such claim, with counsel reasonably satisfactory to
the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without the
indemnifying party's consent (but such consent will not be
unreasonably withheld so long as the indemnified party
receives a complete release from any and all liability). An
indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties
with respect to such claim.
5.4 SURVIVAL. The indemnification provided for under this
Agreement will remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person or entity
of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions,
as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's
indemnification is unavailable for any reason.
6. MISCELLANEOUS.
6.1 NO INCONSISTENT AGREEMENTS. The Corporation will not hereafter
enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement.
6.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Corporation
will not take any action or permit any change to occur with
respect to its securities which would
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materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities
in a registration undertaken pursuant to this Agreement or
which would materially and adversely affect the marketability
of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a
combination of shares).
6.3 REMEDIES. Any person or entity having rights under any
provision of this Agreement will be entitled to enforce such
rights specifically, to recover damages caused by reason of
any breach of any provision of this Agreement, and to exercise
all other rights granted by law.
6.4 AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended and the
Corporation may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if
the Corporation has obtained the written consent of the
Stockholder.
6.5 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will
bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made,
the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent holder of
Registrable Securities.
6.6 HEADINGS. The headings of various paragraphs of this Agreement
have been inserted for reference only and shall not be a part
of this Agreement.
6.7 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If, however, any
provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such
provisions shall be ineffective to the extent of such
invalidity or unenforceability, without invalidating the
remainder of such provision or the remaining provisions of
this Agreement.
6.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
Illinois without reference to (i) its judicially or
statutorily pronounced rules regarding conflict of laws or
choice of law; (ii) where any instrument is executed or
delivered; (iii) where any payment or other performance
required by any such instrument is made or required to be
made; (iv) where any breach of any provision of any such
instrument occurs, or any cause of action otherwise accrues;
(v) where any action or other proceeding is instituted or
pending; (vi) the nationality, citizenship, domicile,
principal place of business, or jurisdiction or organization
or domestication of any party; (vii) whether the laws of the
form jurisdiction otherwise would apply the laws of a
jurisdiction other than the State of Illinois; or (viii) any
combination of the foregoing.
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6.9 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing, and shall be either (i)
personally delivered, (ii) sent by U.S. certified or
registered mail, return receipt requested, postage prepaid, or
(iii) sent by Federal Express or other reputable common
carrier guaranteeing next business day delivery, to the
respective addresses of the parties set forth below, or to
such other place as any party hereto may by notice given as
provided herein designate for receipt of notices hereunder.
Any such notice shall be deemed given and effective upon
receipt or refusal of receipt thereof by the primary party to
whom it is to be sent.
If to the Corporation : LightFirst Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
If to the Stockholder: Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx, Xxxx 000
Xxx Xxxxxxx, XX 00000
6.10 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties with regard to
the subject matter hereof, and there are no other prior or
contemporaneous written or oral agreements, undertakings,
promises, warranties, or covenants respecting such subject
matter not expressly set forth herein.
6.11 COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, any of which may contain the
signatures of less than all parties, and all of which together
shall constitute a single agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
LIGHTFIRST INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Its: President
STOCKHOLDER
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
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