Exhibit 10.30
STRATEGIC PARTNER
REGISTRATION RIGHTS AGREEMENT dated
as of March 1, 2000, between OPUS360
CORPORATION, a Delaware corporation
(the "CORPORATION"), and DELL USA
L.P., a Texas limited partnership
("DELL").
Dell owns or has the right to purchase or otherwise acquire
shares of the Corporation's Common Stock (as defined below). The Corporation and
Dell deem it to be in their respective best interests to enter into this
Agreement to set forth the rights of Dell in connection with public offerings
and sales of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. DEFINITIONS.
As used herein, the following terms shall have the following
respective meanings:
"ADDITIONAL REGISTRABLE SHARES" means, at any time with
respect to any Additional Securityholder, the Registrable Shares held by such
Additional Securityholder (but only if such Additional Securityholder is
entitled (but not pursuant to this Agreement) to the registration of such
Registrable Shares by the Corporation under the Securities Act for sale to the
public).
"ADDITIONAL SECURITYHOLDER" means any holder of Restricted
Securities who or which is entitled (but not pursuant to this Agreement) to the
registration of such Restricted Securities by the Corporation under the
Securities Act for sale to the public.
"AGREEMENT" means this Strategic Partner Registration Rights
Agreement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or
a day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"COMMON STOCK" means the Common Stock, par value $.001 per
share, of the Corporation (and such other class of common stock of the
Corporation, or any successor thereto, into which the Common Stock may be
converted or reclassified, and all references herein to the Common Stock shall
mean such other class of common stock, if applicable).
"CONVERSION SHARES" means the Series A Conversion Shares and
the Series B Conversion Shares.
"CORPORATION" has the meaning assigned to such term in the
caption to this Agreement.
"DELL" has the meaning assigned to such term in the caption to
this Agreement.
"DELL SECURITYHOLDERS" means, collectively, (i) Dell, (ii) any
other Persons listed on SCHEDULE I from time to time, and (iii) any purchaser,
assignee or other transferee of Restricted Securities held by any of the
foregoing in a purchase, assignment or other transfer permitted under SECTION 19
and in which such purchaser, assignee or other transferee has complied in full
with the joinder requirements set forth in SECTION 19. Upon the addition of each
new Dell Securityholder as a party to this Agreement, the Corporation shall
amend SCHEDULE I solely to reflect the name and address of such new Dell
Securityholder, and the Corporation shall distribute to the Dell Securityholders
such amended SCHEDULE I.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
SEC promulgated thereunder, all as the same may from time to time be in effect.
"GOVERNMENTAL ENTITY" means any government or political
subdivision or department thereof, any governmental or regulatory body,
commission, board, bureau, agency or instrumentality, or any court or arbitrator
or alternative dispute resolution body, in each case whether federal, state,
local or foreign.
"INITIAL COMMON SHARES" means the Registrable Shares that are
(i) shares of Common Stock issued or issuable to Xxx Xxxxxxxx, Xxxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx XxXxxx, Xxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx or USWeb/CKS Corporation, or (ii) shares
of Common Stock issued on or with respect to the shares of Common Stock referred
to in CLAUSE (i) above.
"INITIAL WARRANTS" means (i) the warrants dated May 19, 1999
and August 17, 1999 issued by the Corporation to Silicon Valley Bank to purchase
shares of Common Stock, (ii) the warrants dated December 24, 1998 issued by the
Corporation to each of Xxxxxx Xxxxxxx, G&R Partnership, LP, Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxx and Xxxxx Xxxxxxxxxx to purchase shares of Common Stock, and (iii)
the warrants dated September 3, 1999 and January 15, 2000 issued by the
Corporation to Xxxxxxxxx & Co., LLC.
"LAW" means any foreign, federal, state or local law, statute,
treaty, rule, directive, regulation, ordinances and similar provisions having
the force or effect of law or any Order.
"MAJORITY OF THE DELL SECURITYHOLDERS" means those Dell
Securityholders who or which hold in the aggregate in excess of 50% of all of
the Registrable Shares.
"MATERIAL TRANSACTION" shall mean any material transaction in
which the Corporation or any of its Subsidiaries proposes to engage or is
engaged, including a purchase or sale of assets or securities, financing,
merger, consolidation, tender offer or any other transaction or event that would
require disclosure pursuant to the Exchange Act if the Corporation were a
reporting company thereunder, and with respect to which the Board of Directors
of the Corporation reasonably has determined in good faith that compliance with
this Agreement may reasonably be expected to either materially interfere with
the Corporation's or such Subsidiary's ability to consummate such transaction in
a timely fashion or require the Corporation to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
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"ORDERS" means any enforceable judgments, writs, decrees,
declarations, injunctions, orders, stipulations, compliance agreement or
settlement agreements issued or imposed by, or entered into with, a Governmental
Entity.
"OTHER SHARES" means, at any time, those shares of Common
Stock which do not constitute Primary Shares, Registrable Shares or Additional
Registrable Shares.
"PERSON" shall be construed as broadly as possible and shall
include an individual, a corporation, a company, an association, a joint stock
company, a partnership (including a limited liability partnership), a limited
liability company, a joint venture, a trust or an unincorporated organization
and a Governmental Entity.
"PRIMARY SHARES" means, at any time, the authorized but
unissued shares of Common Stock or Common Stock held by the Corporation in its
treasury.
"PROSPECTUS" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"PUBLIC OFFERING" means a public offering of Common Stock
pursuant to a registration statement declared effective under the Securities
Act, except that a Public Offering shall not include an offering of securities
to be issued as consideration in connection with a business acquisition or an
offering of securities issuable pursuant to an employee benefit plan.
"REGISTERING DELL SECURITYHOLDERS" means, with respect to any
registration of Registrable Shares, those Dell Securityholders who or which hold
the Registrable Shares included in such registration.
"REGISTRABLE SHARES" means, at any time with respect to any
Dell Securityholder or Additional Securityholder, the shares of Common Stock
held by such Dell Securityholder or Additional Securityholder that constitute
Restricted Securities. For purposes of this definition, a Dell Securityholder or
Additional Securityholder shall be deemed to be the holder of shares of Common
Stock whenever such Dell Securityholder or Additional Securityholder has the
right acquire, directly or indirectly, such Common Stock upon the conversion or
exercise of Restricted Securities (but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"REGISTRATION DATE" means the date upon which the registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"REGISTRATION STATEMENT" means any registration statement of
the Corporation which covers any of the Registrable Shares, and all amendments
and supplements to any such Registration Statement, including post-effective
amendments, in each case including the
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Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"RESTRICTED SECURITIES" means, at any time, with respect to
any Person, the shares of Common Stock, the shares of Series A Preferred Stock,
the shares of Series B Preferred Stock, the Initial Warrants and any other
securities which by their terms are directly or indirectly exercisable or
exchangeable for or convertible into any of the foregoing securities, and any
securities received on or with respect to any of the foregoing securities, in
each case which are held by such Person. As to particular securities
constituting Restricted Securities, such securities shall cease to be Restricted
Securities when (A) they have been registered under the Securities Act, the
Registration Statement in connection therewith has been declared effective and
such Restricted Securities have been disposed of pursuant to and in the manner
described in such effective Registration Statement, (B) they are eligible to be
sold or distributed by the holder thereof pursuant to Rule 144 within any
consecutive three-month period (including, without limitation, Rule 144(k))
without volume limitations, (C) they have been otherwise transferred and new
certificates or other evidences of ownership for them not bearing a restrictive
legend and not subject to any stop transfer order or other restriction on
transfer shall have been delivered by the Corporation or the issuer of other
securities issued in exchange for the Restricted Securities, or (D) they have
ceased to be outstanding.
"SEC" means the United States Securities and Exchange
Commission.
"SECURITIES" means, with respect to any Person, such Person's
"SECURITIES," as defined in Section 2(1) of the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the SEC
promulgated thereunder, all as the same may from time to time be in effect.
"SERIES A CONVERSION SHARES" means the Registrable Shares that
are (i) shares of Common Stock issued or issuable upon the conversion of Series
A Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in CLAUSE (i) above or (iii) shares of Common
Stock issued on or with respect to the Series A Preferred Stock.
"SERIES A PREFERRED STOCK" means the Corporation's Series A
Convertible Preferred Stock, par value $.001 per share.
"SERIES B CONVERSION SHARES" means the Registrable Shares that
are (i) shares of Common Stock issued or issuable upon the conversion of Series
B Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in CLAUSE (i) above or (iii) shares of Common
Stock issued on or with respect to the Series B Preferred Stock.
"SERIES B PREFERRED STOCK" means the Corporation's Series B
Convertible Preferred Stock, par value $.001 per share.
"SHARES" means the Registrable Shares, the Additional
Registrable Shares, the SP Registrable Shares, the Initial Common Shares, the
Conversion Shares and the Warrant Shares.
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"SP REGISTRABLE SHARES" means (i) any Additional Registrable
Shares issued by the Corporation to any Strategic Partner (other than Dell) in
connection with such Strategic Partner's entry into a strategic arrangement with
the Corporation for the provision by either party to the other party of goods,
services, technology, expertise or other value and (ii) any other Additional
Registrable Shares issued on or with respect to the Additional Registrable
Shares referred to in CLAUSE (i) above.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement
dated as of February __, 2000, between the Corporation and Dell, as amended,
supplemented or otherwise modified and in effect from time to time.
"STRATEGIC PARTNER" means a Person who or which, at the time
in question, has entered into, or is simultaneously entering into or has agreed
to enter into, a strategic arrangement with the Corporation for the provision by
either party to the other party of goods, services, technology, expertise or
other value.
"SUBSIDIARY" means, as to any Person, any other Person of
which more than 50% of the shares of the voting stock or other voting interests
are owned or controlled, or the ability to select or elect 50% or more of the
directors or similar managers is held, directly or indirectly, by such first
Person or one or more of its Subsidiaries.
"WARRANT SHARES" means the Registrable Shares that are (i)
shares of Common Stock issued or issuable upon the exercise of the Initial
Warrants, (ii) shares of Common Stock issued on or with respect to the shares of
Common Stock referred to in CLAUSE (i) above or (iii) shares of Common Stock
issued on or with respect to the Initial Warrants.
2. FORM S-3 REGISTRATIONS.
(a) If, at any time after the Registration Date the Corporation shall be
qualified for the use of Form S-3 promulgated under the Securities Act (or any
successor form thereto) for the sale to the public of Registrable Shares held by
the Dell Securityholders, a Majority of the Dell Securityholders shall notify
the Corporation in writing that such Dell Securityholders desire to sell
Registrable Shares, with an anticipated aggregate gross offering price (before
underwriting discounts and commissions) of at least $3,000,000, in the public
securities market and request that the Corporation effect the registration on
Form S-3 (or any successor form thereto) of such Registrable Shares, the
Corporation shall:
(i) promptly give written notice of the proposed registration to all
other Dell Securityholders, who or which shall have the right, subject to
the applicable terms of this Agreement, to include in such registration
Registrable Shares held by them (exercisable by delivering to the
Corporation a written notice specifying the number of Registrable Shares
requested to be included within 30 days after receipt of such notice of
such registration from the Corporation); and
(ii) file and then use its best efforts to have the registration on
Form S-3 (or any successor form thereto) of the Registrable Shares which
the Corporation has been so requested to register declared effective.
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(b) Anything contained in SECTION 2(a) to the contrary notwithstanding, the
Corporation shall not be obligated to effect pursuant to SECTION 2(a) any
registration under the Securities Act except in accordance with the following
provisions:
(i) The Corporation shall not be obligated to use its best
efforts to file and cause to become effective (a) more than two
Registration Statements requested pursuant to SECTION 2(a) or (B) any
Registration Statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days.
(ii) The Corporation may delay the filing or effectiveness of any
Registration Statement for a period of up to 90 days after the date of
a request for registration pursuant to SECTION 2(a) if at the time of
such request the Corporation (A) is engaged, or has fixed plans to
engage within 90 days of the time of such request, in a firm
commitment, underwritten public offering of Primary Shares in which
the holders of Registrable Shares may include Registrable Shares
pursuant to SECTION 3 or (B) is engaged in a Material Transaction.
(iii) In connection with any registration of Registrable Shares
pursuant to SECTION 2(a), the Corporation shall give notice of such
registration to the holders of all Additional Registrable Shares and
Other Shares which are entitled to registration rights and the
Corporation may include in such registration any Primary Shares,
Additional Registrable Shares or Other Shares; PROVIDED, HOWEVER, that
if the managing underwriter advises the Corporation that the inclusion
of all of the Registrable Shares, Primary Shares, Additional
Registrable Shares and/or Other Shares proposed to be included in such
registration would interfere with the successful marketing (including
pricing) of all of such securities, then the number of Registrable
Shares, Primary Shares, Additional Registrable Shares and/or Other
Shares proposed to be included in such registration shall be included
in the following order:
(A) FIRST, the Registrable Shares requested by the Dell
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable
Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
PRO RATA among all such Persons based upon the aggregate
number of Registrable Shares and SP Registrable Shares held
by each such Person at the time of registration);
(B) SECOND, the Additional Registrable Shares
constituting Initial Common Shares, Conversion Shares or
Warrant Shares requested by the Additional Securityholders
to be included in such registration (or, if necessary, such
Shares allocated among all such Additional Securityholders
in accordance with the applicable provisions of any
agreements between the Corporation and such Additional
Securityholders, as amended, supplemented or otherwise
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modified from time to time and in effect at the time of
registration, or, in the absence of any applicable
provisions, PRO RATA among all such Additional
Securityholders based upon the number of Additional
Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such
Additional Securityholder at the time of registration);
(C) THIRD, the Primary Shares
(D) FOURTH, the Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares,
Warrant Shares or SP Registrable Shares requested by the
Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among
all such Additional Securityholders in accordance with the
applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in
effect at the time of registration, or, in the absence of
any applicable provisions, PRO RATA among all such
Additional Securityholders based upon the number of
Additional Registrable Shares not constituting Initial
Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares held by each such Additional
Securityholder at the time of registration);
(E) FIFTH, the Registrable Shares requested by the Dell
Securityholders to be included in such registration (or, if
necessary, such Shares PRO RATA among all such Persons based
upon the aggregate number of Registrable Shares held by each
such Dell Securityholder at the time of registration); and
(F) SIXTH, the Other Shares.
(c) If the Majority of the Dell Securityholders in a registration
requested pursuant to SECTION 2(a) intend to distribute the Registrable
Shares covered by their request by means of an underwriting, they shall so
advise the Corporation as a part of their request for registration pursuant
to SECTION 2(a). In such event, the Corporation shall select one or more
nationally recognized firms of investment bankers reasonably acceptable to
the Majority of the Dell Securityholders to act as the lead managing
underwriter or underwriters in connection with such offering. The right of
any Registering Dell Securityholder to registration pursuant to SECTION
2(a) shall be conditioned upon such Registering Dell Securityholder's
participation in such underwriting and the inclusion of such Registering
Dell Securityholder's Registrable Shares in the underwriting (unless
otherwise mutually agreed by the Corporation and such Registering Dell
Securityholder) to the extent provided herein. The Corporation and the
Registering Dell Securityholders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement which
is reasonable and in customary form with the underwriters of such offering.
(d) A requested registration under SECTION 2(a) may be rescinded prior
to the related Registration Statement being declared effective by the SEC
by written notice to the Corporation from the Majority of the Dell
Securityholders; PROVIDED, HOWEVER, such registration shall not count as a
Registration Statement requested pursuant to SECTION 2(a) for purposes of
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CLAUSE (A) of SECTION 2(b)(i) if the Corporation shall have been reimbursed
for all out-of-pocket expenses incurred by the Corporation in connection
with such rescinded registration.
3. PIGGYBACK REGISTRATION.
(a) If the Corporation proposes for any reason to register Primary
Shares, Additional Registrable Shares or Other Shares under the Securities
Act at any time after the closing of an initial Public Offering of Common
Stock (other than on Form S-4 or Form S-8 promulgated under the Securities
Act or any successor forms thereto), it shall give written notice to the Dell
Securityholders of its intention to so register such Primary Shares,
Additional Registrable Shares or Other Shares at least 30 days before the
initial filing of the registration statement for such Primary Shares,
Additional Registrable Shares or Other Shares and, upon the written request,
given within 20 days after delivery of any such notice by the Corporation, of
any Dell Securityholder to include in such registration Registrable Shares
(which request shall specify the number of Registrable Shares proposed to be
included in such registration and shall state the desire of such Dell
Securityholder to sell such Registrable Shares in the public securities
markets), the Corporation shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the Primary Shares, Additional Registrable Shares or Other
Shares otherwise being sold in such registration; PROVIDED, HOWEVER, if the
managing underwriter advises the Corporation that the inclusion of all of the
Registrable Shares, Primary Shares, Additional Registrable Shares and/or
Other Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of all of such securities,
then the number of Registrable Shares, Primary Shares, Additional Registrable
Shares and/or Other Shares proposed to be included in such registration shall
be included in the following order:
(i) If such registration is initiated by the Corporation to
register Primary Shares, Other Shares or Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant Shares or
SP Registrable Shares, or by any holder of the foregoing:
(A) FIRST, the Primary Shares;
(B) SECOND, the Registrable Shares requested by the Dell
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable Shares,
Initial Common Shares, Conversion Shares or Warrant Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated between (x)
the Dell Securityholders and the Additional Securityholders who or
which have requested the inclusion of Registrable Shares or SP
Registrable Shares in such registration on the one hand and (y) the
other Additional Securityholders who or which have requested the
inclusion of Additional Registrable Shares constituting Initial
Common Shares, Conversion Shares or Warrant Shares in such
registration on the other hand, in proportion to the aggregate
number of Shares held by each such group of Persons at the time of
registration, with the aggregate number of Shares allocated to the
Additional Securityholders described in CLAUSE (y) above
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further allocated among such Additional Securityholders in
accordance with the applicable provisions of any agreements between
the Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of registration, or, in the absence of any applicable
provisions, PRO RATA among all such Additional Securityholders
based upon the number of Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares held by
each such Additional Securityholder at the time of registration);
(C) THIRD, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to
be included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of registration, or, in the absence of any applicable
provisions, PRO RATA among all such Additional Securityholders
based upon the number of Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant
Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of registration); and
(D) FOURTH, the Other Shares.
(ii) If such registration is initiated by Additional Securityholders
who or which request the inclusion of their Additional Registrable Shares
constituting SP Registrable Shares in such registration:
(A) FIRST, the Additional Registrable Shares constituting SP
Registrable Shares requested by the Additional Securityholders to
be included in such registration and the Registrable Shares
requested by the Dell Securityholders to be included in such
registration (or, if necessary, such Shares PRO RATA among all such
Persons based on the aggregate number of SP Registrable Shares and
Registrable Shares held by each such Person at the time of
registration);
(B) SECOND, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all
such Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of
registration, or, in the absence of any applicable provisions, PRO
RATA among all such Additional Securityholders based upon the
number of Additional Registrable Shares constituting Initial Common
Shares, Conversion Shares or Warrant Shares held by each such
Additional Securityholder at the time of registration);
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(C) THIRD, the Primary Shares;
(D) FOURTH, the Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant
Shares or SP Registrable Shares requested by the Additional
Securityholders to be included in such registration (or, if
necessary, such Shares allocated among all such Additional
Securityholders in accordance with the applicable provisions of any
agreements between the Corporation and such Additional
Securityholders, as amended, supplemented or otherwise modified
from time to time and in effect at the time of registration, or, in
the absence of any applicable provisions, PRO RATA among all such
Additional Securityholders based upon the number of Additional
Registrable Shares not constituting Initial Common Shares,
Conversion Shares, Warrant Shares or SP Registrable Shares held by
each such Additional Securityholder at the time of registration);
and
(E) FIFTH, the Other Shares.
(iii) If such registration is initiated by Additional
Securityholders who or which request the inclusion of Additional
Registrable Shares constituting Initial Common Shares, Conversion Shares
or Warrant Shares in such registration:
(A) FIRST, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all
such Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of
registration, or, in the absence of any applicable provisions, PRO
RATA among all such Additional Securityholders based upon the
number of Additional Registrable Shares constituting Initial Common
Shares, Conversion Shares or Warrant Shares held by each such
Additional Securityholder at the time of registration);
(B) SECOND, the Registrable Shares requested by the Dell
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares PRO RATA among all such
Persons based on the aggregate number of Registrable Shares and SP
Registrable Shares held by each such Person at the time of
registration);
(C) THIRD, the Primary Shares;
(D) FOURTH, the Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant
Shares or SP Registrable Shares requested by the Additional
Securityholders
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to be included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of registration, or, in the absence of any applicable
provisions, PRO RATA among all such Additional Securityholders
based upon the number of Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant
Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of registration); and
(E) FIFTH, the Other Shares.
4. HOLDBACK AGREEMENT.
If the Corporation at any time shall register shares of Common
Stock under the Securities Act in an aggregate amount of at least $5,000,000
(including any registration pursuant to SECTION 2 or 3, but excluding any
registrations on Form S-4 or S-8) for sale to the public, no Dell Securityholder
shall sell publicly, make any short sale of, grant any option for the purchase
of, or otherwise dispose publicly of, any capital stock of the Corporation
(other than those shares of Common Stock included in such registration pursuant
to SECTION 2 or 3) without the prior written consent of the Corporation, for a
period designated by the Corporation in writing to the Dell Securityholders,
which period shall begin not more than 10 days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall not last more than 180 days after the date on which such registration
statement became effective, whether or not such Dell Securityholder participates
in such registration. Each Dell Securityholder agrees that the Corporation may
instruct its transfer agent to place stop transfer notations on its records to
enforce this SECTION 4.
5. PREPARATION AND FILING.
If and whenever the Corporation is under an obligation
pursuant to the provisions of this Agreement to use its best efforts to effect
the registration of, and keep effective a Registration Statement, for any
Registrable Shares, the Corporation shall, as expeditiously as practicable:
(a) use its best efforts to cause a Registration Statement that registers
such Registrable Shares to become and remain effective for a period of 90 days
or until all of such Registrable Shares have been disposed of (if earlier);
(b) furnish, at least five Business Days before filing a Registration
Statement that registers such Registrable Shares, a Prospectus relating thereto
and any amendments or supplements relating to such Registration Statement or
Prospectus, to one counsel selected by the Majority of the Dell Securityholders
(the "DELL SECURITYHOLDERS' COUNSEL"), copies of all such documents proposed to
be filed (it being understood that such five Business Day period need not apply
to successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to the Dell Securityholders' Counsel in advance
of the proposed filing by a period of time that is customary and reasonable
under the circumstances);
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(c) prepare and file with the SEC 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 at least a period of
90 days or until all of such Registrable Shares have been disposed of (if
earlier) and to comply with the provisions of the Securities Act with respect to
the sale or other disposition of such Registrable Shares;
(d) notify the Dell Securityholders' Counsel promptly in writing of (i) any
comments by the SEC with respect to such Registration Statement or Prospectus,
or any request by the SEC for the amending or supplementing thereof or for
additional information with respect thereto, (ii) the issuance by the SEC of any
stop order suspending the effectiveness of such Registration Statement or
Prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceedings for that purpose (and the Corporation shall use
its best efforts to prevent the issuance thereof or, if issued, to obtain its
withdrawal) and (iii) the receipt by the Corporation of any notification with
respect to the suspension of the qualification of such Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as any
Registering Dell Securityholder may reasonably request, to keep such
registrations or qualifications in effect for so long as such Registration
Statement covering such Registrable Shares remains in effect and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Registering Dell Securityholder to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such Registering Dell
Securityholder; PROVIDED, HOWEVER, that the Corporation will not be required to
qualify generally to do business, to subject itself to general taxation or
consent to general service of process in any jurisdiction where it would not
otherwise be required to do so but for this SECTION 5(e) or to provide any
material undertaking or make any changes in its Bylaws or Certificate of
Incorporation which its Board of Directors determines to be contrary to the best
interests of the Corporation;
(f) furnish to each Registering Dell Securityholder such number of copies
of a summary Prospectus, if any, or other Prospectus, including a preliminary
Prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such Registering Dell Securityholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares held by Registering Dell Securityholder;
(g) use its best efforts to cause such Registrable Shares to be registered
with or approved by such other Governmental Entities as may be necessary by
virtue of the business and operations of the Corporation to enable the
Registering Dell Securityholders to consummate the disposition of such
Registrable Shares;
(h) notify on a timely basis each Registering Dell Securityholder at any
time when a Prospectus relating to such Registrable Shares is required to be
delivered under the Securities Act within the appropriate period mentioned in
SECTION 5(a), of the happening of any event known to the Corporation 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
12
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing and, at the
request of such Registering Dell Securityholder, prepare and furnish to such
Registering Dell Securityholder a reasonable number of copies of a supplement to
or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the offerees of such Registrable Shares, such Prospectus shall not
include 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 not
misleading in light of the circumstances then existing;
(i) subject to the execution of confidentiality agreements in form and
substance satisfactory to the Corporation, make available, upon reasonable
notice and during normal business hours, for inspection by the Registering Dell
Securityholders any underwriter participating in any disposition pursuant to
such Registration Statement and any attorney, accountant or other agent retained
by the Registering Dell Securityholders or underwriter (collectively, the
"INSPECTORS"), all pertinent financial and other records, pertinent corporate
documents and properties of the Corporation (collectively, the "RECORDS"), as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Corporation's officers, directors and employees to
supply all information (together with the Records, the "INFORMATION") reasonably
requested by any such Inspector in connection with such Registration Statement
(any of the Information which the Corporation determines in good faith to be
confidential, and of which determination the Inspectors are so notified, shall
not be disclosed by the Inspectors, unless (i) the disclosure of such
Information is necessary to avoid or correct a misstatement or omission in the
Registration Statement, (ii) the release of such Information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction or, upon the
written advice of counsel, is otherwise required by law, or (iii) such
Information has been made generally available to the public, and each
Registering Dell Securityholder agrees that it will, upon learning that
disclosure of such Information is sought in a court of competent jurisdiction,
give notice to the Corporation and allow the Corporation, at the Corporation's
expense, to undertake appropriate action to prevent disclosure of the
Information deemed confidential);
(j) use its best efforts to obtain from its independent certified public
accountants "COLD COMFORT" letters in customary form and at customary times and
covering matters of the type customarily covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion or opinions
in customary form;
(l) provide a transfer agent and registrar (which may be the same Person
and which may be the Corporation) for such Registrable Shares;
(m) issue to any underwriter to which any Registrable Dell Securityholder
may sell such Registrable Shares in such offering, certificates evidencing such
Registrable Shares;
(n) list such Registrable Shares on any national securities exchange on
which any shares of Common Stock are listed or, if Common Stock is not listed on
a national securities exchange, use its best efforts to qualify such Registrable
Shares for inclusion on the national
13
automated quotation system of the National Association of Securities Dealers,
Inc. (the "NASD"), or such other national securities exchange as the holders of
a majority of such Registrable Shares shall reasonably request;
(o) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC and make available to its securityholders, as soon as
reasonably practicable, earnings statements (which need not be audited) covering
a period of 12 months beginning within three months after the effective date of
the Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) subject to all of the other provisions of this Agreement, use its best
efforts to take all other steps necessary to effect the registration of such
Registrable Shares contemplated hereby.
Each Registering Dell Securityholder, upon the receipt of any
notice from the Corporation of any event of the kind described in SECTION 5(h),
shall forthwith discontinue disposition of Registrable Shares pursuant to the
Registration Statement until such Registering Dell Securityholder's receipt of
copies of the supplemented or amended Prospectus contemplated by SECTION 5(h),
and, if so directed by the Corporation, such Registering Dell Securityholder
shall deliver to the Corporation all copies, other than permanent file copies
then in such Dell Securityholder's possession, of the Prospectus covering such
Registrable Shares at the time of receipt of such notice.
6. EXPENSES.
All expenses incurred by the Corporation in complying with
SECTION 5, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Corporation's counsel and accountants and fees and expenses of
the Dell Securityholders' Counsel, shall be paid by the Corporation; PROVIDED,
HOWEVER, that all underwriting discounts and selling commissions applicable to
the Registrable Shares shall not be borne by the Corporation and shall be borne
by the Registering Dell Securityholders selling such Registrable Securities, in
proportion to the number of Registrable Shares sold by each such Registering
Dell Securityholder.
7. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Corporation shall indemnify and
hold harmless each holder of such Registrable Shares, each underwriter, broker
or any other Person acting on behalf of any such holder and each other Person,
if any, who controls any of the foregoing Persons within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, (or actions in respect thereof) to which any of the foregoing Persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
14
Prospectus or final Prospectus contained therein or otherwise filed with the
SEC, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon 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 or, with respect to any Prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state securities or
blue sky laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws, and the Corporation
shall promptly reimburse each such holder, underwriter, broker or other Person
acting on behalf of any such holder and each such controlling Person for any
legal or other expenses incurred by any of them in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the Corporation shall not be liable to any such Person to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in said Registration Statement, preliminary Prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with information furnished
to the Corporation, or a Person duly acting on the Corporation's behalf, through
an instrument duly executed by such Person, or a Person duly acting on such
Person's behalf, specifically for use in connection with the preparation
thereof; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any untrue statement,
allegedly untrue statement, omission or alleged omission made in any preliminary
Prospectus but eliminated or remedied in the final Prospectus (filed pursuant to
Rule 424 of the Securities Act), such indemnity agreement shall not inure to the
benefit of any indemnified party from whom the Person asserting any loss, claim,
damage, liability or expense purchased the Registrable Shares which are the
subject thereof, if a copy of such final Prospectus had been timely made
available to such indemnified Person and such final Prospectus was not delivered
to such Person with or prior to the written confirmation of the sale of such
Registrable Shares to such Person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in SECTION 7(a)) the Corporation,
each director of the Corporation, each officer of the Corporation who signs such
Registration Statement, each other holder of Registrable Shares, Additional
Registrable Shares or Other Shares included in such Registration Statement
(PROVIDED, that the holder shall be entitled to indemnification of a similar
nature from such other holder to at least the same extent as the indemnification
given by the holder pursuant to this SECTION 7(b)), each underwriter, broker or
any other Person acting on behalf of any such holder and each other Person, if
any, who controls any of the foregoing Persons within the meaning of the
Securities Act with respect to any statement or omission from such Registration
Statement, any preliminary Prospectus or final Prospectus contained therein or
otherwise filed with the SEC, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such underwriter through an
instrument duly executed by such holder, or a Person duly acting on such
holder's behalf, specifically for use in
15
connection with the preparation of such Registration Statement, preliminary
Prospectus, final Prospectus, amendment, supplement or document; PROVIDED,
HOWEVER, that the maximum amount of liability in respect of such indemnification
shall be limited, in the case of each holder of Registrable Shares, to an amount
equal to the net proceeds actually received by such holder from the sale of
Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in SECTION 7(a) or
SECTION 7(b), such indemnified party will, if a claim in respect thereof is made
against an indemnifying party, give written notice to the latter of the
commencement of such action (PROVIDED that an indemnified party's failure to
give such notice in a timely manner shall only relieve the indemnification
obligations of an indemnifying party to the extent such indemnifying party is
prejudiced by such failure). In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; PROVIDED, HOWEVER, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are in addition to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this SECTION 7, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
Person controlling such indemnified party for that portion of the fees and
expenses of any one lead counsel (PLUS appropriate special and local counsel)
retained by the indemnified party which are reasonably related to the matters
covered by the indemnity agreement provided in this SECTION 7. The indemnifying
party shall not be liable to indemnify any indemnified party for any settlement
of any claim or action effected without the consent of the indemnifying party.
The indemnifying party may not settle any claim or action brought against an
indemnified party unless such indemnified party is released from all and any
liability as part of such settlement.
(d) If the indemnification provided for in this SECTION 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action 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 hand in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations; PROVIDED, HOWEVER, that the maximum amount of liability in
respect of such contribution shall be limited, in the case of each holder of
Registrable Shares, to an amount equal to the net proceeds actually received by
such holder from the sale of Registrable Shares effected pursuant to such
registration. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or
16
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.
The parties agree that it would not be just and equitable if contribution
pursuant hereto were determined by PRO RATA allocation or by any other method or
allocation which does not take account of the equitable considerations referred
to herein. No person guilty of fraudulent misrepresentation shall be entitled to
contribution from any person.
(e) The indemnification and contribution 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 and will survive the transfer of securities.
8. UNDERWRITING AGREEMENT.
Notwithstanding the provisions of SECTIONS 5 through 7, to the
extent that the Dell Securityholders shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more issues
addressed in such Sections, the provisions contained in such Sections addressing
such issue or issues shall be of no force or effect with respect to such
registration, but this provision shall not apply to the Corporation if the
Corporation is not a party to the underwriting or similar agreement.
9. SUSPENSION.
Anything contained in this Agreement to the contrary
notwithstanding, the Corporation may (but not more than once with respect to
each Registration Statement), by notice in writing to each holder of Registrable
Shares to which a Prospectus relates, require such holder to suspend, for up to
90 days (the "SUSPENSION PERIOD"), the use of any Prospectus included in a
Registration Statement filed under SECTION 2 or 3 if a Material Transaction
exists that would require an amendment to such Registration Statement or
supplement to such Prospectus (including any such amendment or supplement made
through incorporation by reference to a report filed under Section 13 of the
Exchange Act). The period during which such Prospectus must remain effective
shall be extended by a period equal to the Suspension Period. The Corporation
may (but shall not be obligated to) withdraw the effectiveness of any
Registration Statement subject to this provision.
10. INFORMATION BY HOLDER.
Each holder of Registrable Shares to be included in any such
registration shall furnish to the Corporation and the managing underwriter such
written information regarding such holder and the distribution proposed by such
holder as the Corporation or the managing underwriter may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
11. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a
registration statement filed by the Corporation pursuant to the Exchange Act
relating to any class of the Corporation's securities
17
shall have become effective, the Corporation shall comply with all of the
reporting requirements of the Exchange Act applicable to it (whether or not it
shall be required to do so, but specifically excluding Section 14 of the
Exchange Act if not then applicable to the Corporation) and shall comply with
all other public information reporting requirements of the SEC which are
conditions to the availability of Rule 144 for the sale of the Common Stock. The
Corporation shall cooperate with the Dell Securityholders in supplying such
information as may be necessary for the Dell Securityholders to complete and
file any information reporting forms presently or hereafter required by the SEC
as a condition to the availability of Rule 144.
12. LEGENDS ON CERTIFICATES.
(a) Each certificate issued after the date hereof that represents
Restricted Securities shall (unless otherwise permitted by the provisions of
this SECTION 12) be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any other legend required by
law or applicable agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT").
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER
THE ACT OR AN EXEMPTION THEREFROM."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO THE TERMS AND CONDITIONS OF A STRATEGIC PARTNER
REGISTRATION RIGHTS AGREEMENT DATED AS OF MARCH 1, 2000,
BETWEEN OPUS360 CORPORATION AND DELL COMPUTER CORPORATION, AS
THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
AND IN EFFECT FROM TIME TO TIME. COPIES OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SUCH
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE."
The Corporation agrees to remove the legend set forth in this
SECTION 12(a) from a certificate representing securities issued by the
Corporation if such securities are sold pursuant to an effective registration
statement under the Securities Act or there is delivered to the Corporation an
opinion of nationally recognized counsel experienced in such matters in form and
substance reasonably satisfactory to the Corporation that the securities
represented thereby need no longer be subject to restrictions on resale under
the Securities Act.
18
(b) Each Dell Securityholder consents to the Corporation making a notation
on its records and giving instructions to any transfer agent of such Dell
Securityholder's Restricted Securities in order to implement the restrictions on
transfer established in this SECTION 12.
13. MERGERS, ETC.
The Corporation shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Corporation shall not
be the surviving corporation unless the surviving corporation shall, prior to
such merger, consolidation or reorganization, agree in writing to assume the
obligations of the Corporation under this Agreement, and for that purpose
references hereunder to "REGISTRABLE SHARES" shall be deemed to include the
shares of common stock, if any, that holders of Registrable Shares would be
entitled to receive in exchange for Common Stock under any such merger,
consolidation or reorganization; PROVIDED, HOWEVER, that, to the extent holders
of Registrable Shares receive securities that are by their terms convertible
into shares of common stock of the issuer thereof, then only such shares of
common stock as are issued or issuable upon conversion of said convertible
securities shall be included within the definition of "REGISTRABLE SHARES."
14. NOMINEES FOR BENEFICIAL OWNERS.
If Registrable Shares are held by a nominee for the beneficial
owner thereof, the beneficial owner thereof may, at its option, be treated as
the holder of such Registrable Shares for purposes of any request or other
action by any holder or holders of Registrable Shares pursuant to this Agreement
(or any determination of any number of percentage of shares constituting
Registrable Shares held by any holder or holders of Registrable Shares
contemplated by this Agreement); PROVIDED, HOWEVER, that the Corporation shall
have received assurances reasonably satisfactory to it of such beneficial
ownership.
15. NO CONFLICT OF RIGHTS.
The Corporation shall not, after the date hereof, grant any
registration rights which conflict with the registration rights granted hereby.
16. TERMINATION.
This Agreement shall terminate and be of no further force or
effect when there shall no longer be any Registrable Shares or Additional
Registrable Shares outstanding, PROVIDED, HOWEVER, that SECTION 6 and SECTION 7
shall survive the termination of this Agreement.
17. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the
Corporation and the Dell Securityholders and, subject to SECTION 18, the
respective successors and assigns of the Corporation and the Dell
Securityholders.
18. ASSIGNMENT.
19
Subject to the applicable limitations of the Stock Purchase
Agreement, each Dell Securityholder may sell, assign or otherwise transfer its
rights hereunder to any purchaser, assignee or other transferee of the
Registrable Shares of such Dell Securityholder; PROVIDED, HOWEVER, that any such
purchaser, assignee or other transferee, if not already a party to this
Agreement, shall, as a condition to the effectiveness of such sale, assignment
or other transfer, be required to execute a written joinder to this Agreement
agreeing to be treated as a Dell Securityholder under this Agreement, and to be
bound by and comply with all of the applicable terms and provisions hereof,
whereupon such purchaser, assignee or transferee shall have the benefits of, and
shall be subject to the restrictions contained in, this Agreement as if such
purchaser or transferee was originally a Dell Securityholder and had originally
been a party hereto.
19. NOTICES.
All notices, requests, demands, claims, consents or other
communications that are given or made hereunder to any party hereto shall be in
writing and shall be given or made by physical delivery, U.S. mail (registered
or certified mail, postage prepaid, return receipt requested) or overnight
courier or by transmission by facsimile or electronic mail to such party at its,
his or her address (or facsimile number or electronic mail address) set forth
below, or such other address (or facsimile number or electronic mail address) as
shall have been specified by like notice by such party:
20
(i) if to the Corporation, to
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx XxXxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxxxxxx@xxxx000.xxx
with a copy (which shall not constitute notice) to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxx@xxx.xxx
(ii) if to any Dell Securityholder, to such Dell
Securityholder at the address set forth on SCHEDULE I
immediately below the name of such Dell Securityholder.
Each such notice, demand or other communication hereunder
shall be effective upon receipt in the case of physical delivery or overnight
courier, upon confirmation of receipt by or on behalf of the addressee in the
case of transmission by facsimile or electronic mail if received prior to 5:00
p.m. New York City time, and, if received after 5:00 p.m., on the date after
such confirmation, and three (3) days after deposit in the U.S. mails in the
case of mailing.
20. ENTIRE AGREEMENT.
This Agreement and the other writings referred to herein or
delivered pursuant hereto contain the sole and entire agreement among the
Corporation and the Dell Securityholders with respect to the subject matter
hereof and thereof and shall supersede all prior or contemporaneous arrangements
or understandings with respect hereto or thereto.
21. AMENDMENT.
The terms and provisions of this Agreement may not be modified
or amended, nor may any provision be waived, except pursuant to a writing signed
by (i) the Corporation, and (ii) a Majority of the Dell Securityholders;
PROVIDED, HOWEVER, that no such written consent shall be required for the
amendment of SCHEDULE I solely to reflect the name and address of any new Dell
Securityholder who has become a party to this Agreement in accordance with the
terms and conditions hereof. No waiver by any party hereto of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
21
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence. Each holder of any Restricted Securities outstanding at or after the
time of any modification or amendment of, or waiver of any provisions of this
Agreement, shall be bound by any consent authorized by this SECTION 21, whether
or not such Restricted Securities shall have been marked to indicate such
consent.
22. SEVERABILITY.
It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible under
the Laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
23. COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement. This Agreement
and each other agreement or instrument entered into in connection herewith or
contemplated hereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine, shall be treated in all manner
and respects as an original agreement or instrument and shall be considered to
have the same binding legal effect as if it were the original signed version
thereof delivered in person. At the request of any party hereto or to any such
agreement or instrument, each other party hereto or thereto shall reexecute
original forms thereof and deliver them to all other parties.
24. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
25. INTERPRETATION; CONSTRUCTION.
The headings contained in this Agreement and in the table of
contents to this Agreement are for convenience of reference only and shall not
govern or affect in any way the meaning or interpretation of any of the terms or
provisions of this Agreement. Except when the context requires otherwise, any
reference in this Agreement to any Section, clause or Schedule shall be to the
Sections and clauses of, and Schedules to, this Agreement. The words "INCLUDE,"
"INCLUDES" and "INCLUDING" are deemed to be followed by the phrase "WITHOUT
LIMITATION." Any
22
reference to the masculine, feminine or neuter gender shall include such other
genders and any reference to the singular or plural shall include the other, in
each case unless the context otherwise requires. SCHEDULE I annexed hereto are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
26. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS, HIS
OR HER RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO
RELATING TO THE SUJBECT MATTER HEREOF.
27. ATTORNEY'S FEES.
If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover such reasonable attorneys fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled, as may be ordered in connection with such proceeding.
* * * * *
23
IN WITNESS WHEREOF, the parties hereto have duly executed this
Strategic Partner Registration Rights Agreement as of the date first written
above.
OPUS360 CORPORATION
By:
------------------------
Name:
Title:
DELL USA L.P.
BY: DELL GEN. P. CORP.,
ITS GENERAL PARTNER
By:
------------------------
Name:
Title:
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SCHEDULE I
DELL SECURITYHOLDERS
DELL USA L.P.
Xxxx Xxxxxx
Dell Ventures
c/o Dell Computer Corporation
Mail Stop 0000
Xxx Xxxx Xxx
Xxxxx Xxxx, Xxxxx 00000
With copies to:
Xxxxxx X. Xxxxx, Xx.
Vice President and Deputy General Counsel
Legal Department
Dell Computer Corporation
Mail Stop 0000
Xxx Xxxx Xxx
Xxxxx Xxxx, Xxxxx 00000
Xxxxx Xxxxxxxx
Xxxxxx & Xxxxxx L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxx.xxx
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