Exhibit 10.12
AMERICAN BUSINESS INFORMATION, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as
of December 10, 1996 (the "Effective Date"), by and among American Business
Information, Inc., a Delaware corporation (the "Company") and 3319971 Canada
Inc, a Canadian corporation (the "Shareholder").
RECITALS
--------
A. The Company and the Shareholder, among others, are parties to certain
Share Purchase Agreements dated December 10, 1996 (together with the exhibits
and schedules thereto, the "Purchase Agreement,") pursuant to which the Company,
through a wholly owned subsidiary, is acquiring all of the shares of Kadobec
Investments Inc. and CD-PowerMedia Productions Inc., both Canadian corporations.
B. Pursuant to the Purchase Agreement, Shareholder has agreed to
subscribe for 150,000 shares of Common Stock, U.S. $.0025 par value, of the
Company (the "Shares"), subject to certain escrow and other arrangements set
forth in the Purchase Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Black-Out Period" means any period during which executive officers
and directors of the Company are generally prohibited from engaging in trades in
the Company's securities pursuant to the Company's Xxxxxxx Xxxxxxx Policy,
including, without limitation, black-out periods for management related to
quarterly reports of financial results of the Company.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" means the Shareholder, for so long as the Shareholder
holds any
Registrable Securities, or any person holding Registrable Securities to whom the
rights under this Agreement have been transferred in accordance with Section 11
hereof.
"Xxxxxxx Xxxxxxx Policy" means the policy adopted by the Company's
Board of Directors, as such may be amended from time to time, relating to
transactions in the Company's securities by the Company's executive officers and
directors.
"Permitted Window" means the period during which a Holder entitled to
sell Registrable Securities pursuant to a registration statement under Section
5(a) of this Agreement shall be permitted to sell Registrable Securities
pursuant to such a registration. Except as otherwise set forth in this
Agreement, a Permitted Window shall (i) commence upon the tenth business day
following receipt by the Company of a written notice from a Holder to the
Company that such Holder intends to sell Shares pursuant to such registration
statement, or such earlier date as the Company may agree to (or, if such date
falls within a Blackout Period, then upon the termination of such Blackout
Period), and shall (ii) terminate upon the commencement of the next occurring
Black-Out Period. Without the Company's written consent, a Permitted Window
shall not commence prior to the first anniversary of the Effective Date.
"Registrable Securities" means the Shares and any Common Stock of the
Company issued or issuable in respect thereof upon any conversion, stock split,
stock dividend, recapitalization, merger or other reorganization; provided,
however, that securities shall only be treated as Registrable Securities if and
so long as they have not been registered or sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" means all expenses, except as otherwise stated
below, incurred by the Company in complying with Section 5 hereof, including
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Restricted Securities" means the securities of the Company required
to bear a legend as described in Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling
commissions and stock
-2-
transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder.
2. Restrictions on Transferability. Without limitation to the holdback
and escrow provisions contemplated in the Purchase Agreement, the Restricted
Securities and any other securities issued in respect of such securities upon
any stock split, stock dividend, recapitalization, merger or other
reorganization, shall not be sold, assigned, transferred or pledged except upon
the conditions specified in this Agreement, which conditions are intended to
ensure compliance with the provisions of the Securities Act. Each Holder or
transferee will cause any proposed purchaser, assignee, transferee, or pledgee
of any such securities held by the Holder or transferee to agree to take and
hold such securities subject to the restrictions and upon the conditions
specified in this Agreement, including without limitation the restrictions set
forth in Section 4.
3. Restrictive Legend. Each certificate representing the Shares or any
other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization shall be
stamped or otherwise imprinted with legends restricting the transferability
thereof, in substantially the form set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. SUCH SHARES GENERALLY MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
Each Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of its capital stock in order to
implement the restrictions on transfer established in this Agreement and the
Purchase Agreement.
4. Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Without in any way limiting the
immediately preceding sentence, the provisions of Section 2, or the holdback or
escrow provisions in the Purchase Agreement, no sale, assignment, transfer or
pledge (other than (i) a sale made pursuant to a registration statement filed
under the Securities Act and declared effective by the Commission or (ii) a sale
made in accordance with the applicable provisions of Rule 144 and Rule 145) of
Restricted Securities shall be made by any holder thereof to any person unless
such person shall first agree in writing to be bound by the restrictions of this
Agreement, including without limitation this Section 4. Prior to any proposed
sale, assignment, transfer or pledge of any Restricted Securities, unless there
is in effect a registration statement under
-3-
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Company of such holder's intention to effect such
transfer, sale, assignment or pledge. Each such notice shall describe the manner
and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and, if requested by the Company, the holder shall also
provide, at such holder's expense, a written opinion of legal counsel (who shall
be, and whose legal opinion shall be, reasonably satisfactory to the Company)
addressed to the Company, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act and under applicable state securities laws and regulations. Upon delivery to
the Company of such notice and, if required, such opinion, the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of such notice. The Company agrees that it shall
not request such an opinion of counsel with respect to (i) a transfer not
involving a change in beneficial ownership, including without limitation
interspousal transfer (ii) a transaction involving the distribution without
consideration of Restricted Securities by the holder to its constituent equity
holders in proportion to their equity holdings in the holder or (iii) a
transaction involving the transfer without consideration of Restricted
Securities by an individual holder during such holder's lifetime by way of gift
or on death by will or intestacy. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 3 above, except that such certificate shall not bear such restrictive
legend if, in the opinion of counsel for such holder and counsel for the
Company, such legend is not required in order to establish or ensure compliance
with any provision of the Securities Act.
5. Registration on Form S-3.
(a) Registration. The Company shall use its commercially reasonable
efforts to cause a registration statement on Form S-3 covering all Registrable
Securities to be filed and declared effective no later than the first
anniversary of the date of this Agreement, and the initial Permitted Window (the
"Initial Permitted Window") for trading the Shares shall commence as of the
effective date of such registration (or, if such date falls within a Blackout
Period, then upon the termination of such Blackout Period), and continue until
the commencement of the next occurring Black-Out Period. The Company shall use
its commercially reasonable efforts to keep such registration statement
effective until the second anniversary of the date of this Agreement, or such
earlier date upon which no Holder holds any Registrable Securities. After the
Initial Permitted Window, upon receipt of a notice from any Holder that such
Holder intends to sell Registrable Securities during a Permitted Window, the
Company shall, prior to the commencement of the Permitted Window, inform the
other Holders of the commencement of the Permitted Window. The Company shall
notify each of the Holders of the termination of a Permitted Window no later
than the time the Company notifies its executive officers and directors of the
corresponding Black-Out Period; provided, however, that the Company need not
notify the Holders of regularly scheduled Black-Out Periods relating to the end
of the Company's fiscal quarters, which Black-Out Periods begin thirty days
prior to the end of each fiscal quarter and continue until 48 hours after the
announcement of results of operations for such period.
-4-
(b) Limitations on Registration and Sale of Registrable Securities.
Notwithstanding anything in this Agreement to the contrary, the Company's
obligations and the Holders' rights under this Section 5 are subject to the
limitations and qualifications set forth below, which may be waived in writing
by the Company.
(i) The Holders will sell Registrable Securities pursuant to a
registration effected hereunder only during a Permitted Window.
(ii) If the Company furnishes to the Holders a certificate
signed by the President of the Company stating that, in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company for a Form S-3 registration to be effected, or a Permitted Window to
be in effect, due to (A) the existence of a material development involving the
Company which the Company would be obligated to disclose in the prospectus
contained in the Form S-3 registration statement, which disclosure would in the
good faith judgment of the Board of Directors be premature or otherwise
inadvisable, (B) the existence of other facts or circumstances as a result of
which the prospectus contained or to be contained in the Form S-3 registration
statement includes or would include an untrue statement of a material fact or
omits or would 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 under which they were made or then existing or (C) the Company's
bona fide intention to effect the filing of a registration statement with the
Commission within sixty (60) days of the receipt of a notice from a Holder that
it intends to sell Registrable Securities during a Permitted Window, the Company
may defer the filing of the Form S-3 registration statement or delay the
commencement of a Permitted Window or may effect an early termination of a
Permitted Window that has commenced, as the case may be; provided however that
in the case of clause (A) or (B) above, that such deferral, delay or termination
shall expire upon the earlier of the termination of the existence of such
material development or other facts or forty-five days from the date such
certificate.
(iii) The obligations of the Company hereunder are conditioned
upon its being eligible to register its securities on Form S-3 at the time any
such registration is otherwise required hereunder; provided, however, that if
the Company ceases to be eligible to register its securities on Form S-3 at any
time during which any Holder would otherwise be entitled to sell Registrable
Securities pursuant to a registration in accordance with the terms of this
Agreement, the Company shall use its commercially reasonable efforts to become
eligible to register its securities on Form S-3 as soon as practicable.
(iv) At any time that the Company is obligated under this
Agreement to permit the Holders to sell Registrable Securities pursuant to a
registration statement on Form S-3, the Company may, instead of maintaining an
effective registration statement on Form S-3 for the benefit of the Holders,
include such Registrable Securities in a registration effected for the benefit
of the Company and/or other selling stockholders. In the event that such
registration is in connection with an underwritten offering, the Holders
participating in such registration shall enter into an underwriting agreement in
customary form with the managing underwriter selected by the Company,
-5-
notwithstanding the provisions of Section 5(c).
(v) Notwithstanding anything to the contrary in this
Agreement, the Company shall have no obligation to effect a registration
hereunder, and no Permitted Window will exist, with respect to any Registrable
Securities during the time that such Registrable Securities are subject to the
escrow provisions of the Purchase Agreement (including any agreement which is an
exhibit thereto) or during the time that such Registrable Securities are subject
to an actual or contingent obligation to be returned to the Company or one of
its subsidiaries pursuant to Sections 2.5 and following of the Purchase
Agreement, and no Holder shall sell any such Registrable Securities pursuant to
a registration hereunder, or pursuant to Rule 144 or Rule 145, during any such
period.
(c) Underwriting. At the election of the Holders representing a
majority of the Registrable Securities that are proposed to be sold during a
Permitted Window (the "Deciding Holders"), all sales of Registrable Securities
under this Section 5 during such Permitted Window shall be made through an
underwriting managed by an underwriter selected by the Deciding Holders and
reasonably acceptable to the Company (the "Managing Underwriter"). The Company
shall, together with all Holders proposing to distribute their Registrable
Securities though such underwriting, enter into an underwriting agreement in
customary form with the Managing Underwriter. If any Holder of Registrable
Securities disapproves of the terms of the underwriting, such person may elect
to withdraw therefrom by written notice to the Company. Any Holder so
withdrawing shall not sell any Registrable Securities pursuant to a registration
effected under this Agreement until after the completion of such underwritten
distribution.
(d) Registration Procedures. In connection with any registration
required under this Agreement, the Company shall take the actions set forth
below.
(i) Prior to filing any registration statement, prospectus,
amendment or supplement with the Commission in connection with any registration
hereunder, the Company shall furnish to one counsel selected by the Holders of a
majority of the Registrable Securities copies of such documents.
(ii) The Company shall notify each Holder of any stop order
issued or threatened by the Commission and will take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
(iii) The Company shall comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by a
registration statement filed pursuant to this Agreement with respect to the
disposition of all Registrable Securities covered by such registration statement
in accordance with the intended methods of disposition by the Holders as set
forth in such registration statement.
(iv) The Company shall furnish to each Holder and each
underwriter, if
-6-
any, of Registrable Securities covered by a registration statement filed
pursuant to this Agreement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such registration statement (including
each preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as a selling Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder.
(v) The Company shall use its best efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
each State of the United States of America as any of the Holders or
underwriters, if any, of the Registrable Securities covered by a registration
statement filed hereunder reasonably requests, and shall do any and all other
acts and things which may be reasonably necessary or advisable to enable each
selling Holder and each underwriter, if any, to consummate the disposition in
such States of the Registrable Securities owned by such selling Holders;
provided that the Company shall not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subsection (v), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(vi) The Company shall immediately notify each Holder entitled
to sell Registrable Securities during a Permitted Window of the happening of any
event which comes to the Company's attention if, as a result of such event, the
prospectus included in the registration statement filed under this Agreement
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and the Company shall promptly
prepare and furnish to each Holder and file with the Commission a supplement or
amendment to such prospectus so that such prospectus will no longer contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(vi) The Company shall take all such other reasonable and
customary actions as each Holder or the underwriters, if any, may reasonably
request in order to expedite or facilitate the disposition of the Registrable
Securities in accordance with the terms of this Agreement.
(vii) The Company shall make available for inspection by the
Holders, any underwriter participating in any disposition pursuant to a
registration statement filed under this Agreement, and any attorney, accountant
or other agent retained by such Holders or underwriters, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, as such person may reasonably request for the purpose of
confirming that such registration statement does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, provided that the Company obtains reasonably satisfactory
assurances that such information will be used solely for such purpose and will
be held in confidence
-7-
(except to the extent that it is included in the registration statement). The
Company shall cause the officers, directors and employees of the Company and
each of its subsidiaries to supply such information and respond to such
inquiries as any Holder or underwriter may reasonably request or make for the
purpose of confirming that such registration statement does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, provided that the Company obtains reasonably
satisfactory assurances that such information will be used solely for such
purpose and will be held in confidence (except to the extent that it is included
in the registration statement).
(ix) The Company shall use its commercially reasonable efforts
to obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Holders or the underwriters reasonably
request.
(x) The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period (which may begin with the first fiscal
quarter ending after the effective date of the registration statement) of at
least twelve months after the effective date of the registration statement (as
the term "effective date" is defined in Rule 158(c) under the Securities Act),
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(xi) The company shall use its best efforts to cause the Shares
to be listed on the same exchange and/or quotation system as its Common Stock is
traded generally.
6. Other Registration Rights. The Holders acknowledge that certain other
stockholders of the Company may now or hereafter have registration rights, and
that such other stockholders may be entitled to sell their securities at the
same time, or pursuant to the same registration and underwriting, as the Holders
hereunder.
7. Expenses of Registration. All Registration Expenses incurred in
connection with the Company's obligations hereunder shall be borne by the
Company. All Selling Expenses relating to securities proposed to be registered
hereunder shall be borne by the Holders of such securities pro rata on the basis
of the number of shares proposed to be sold by each of them during the
applicable Permitted Window.
8. Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors, members and partners, and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, with respect to which
registration has been effected pursuant to this Agreement, against all expenses,
claims, losses, damages or liabilities (or actions in respect thereof),
including
-8-
any of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the
Securities Act, the Exchange Act, state securities law or any rule or regulation
promulgated under the laws applicable to the Company in connection with any such
registration, and the Company will reimburse each such Holder, each of its
officers, directors members and partners, and each person controlling such
Holder, for any legal and any other expenses reasonably incurred, as such
expenses are incurred; in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action, provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder or controlling person, and stated to be
specifically for use therein; and provided further, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement, alleged untrue statement, omission or alleged omission made in
a preliminary prospectus, such indemnity agreement shall not inure to the
benefit of any person, if a copy of the final prospectus or an amended or
supplemented prospectus, as applicable, was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act, and if the final prospectus or the
amended or supplemented prospectus, as applicable, would have cured the defect
giving rise to the loss, liability, claim or damage. In no event, however, shall
the Company have any indemnification obligation to the extent that the expenses,
claims, losses, damages or liabilities as to which indemnification is sought are
in connection with an offer or sale made by a person other than the Company in
violation of the terms of this Agreement (a "Violation").
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which a registration hereunder is effected,
indemnify the Company, each of its directors and officers, each person who
controls the Company within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on (i) a Violation by such Holder or (ii) any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers or control persons for any legal or any other expenses reasonably
incurred, as such expenses are incurred, in connection with investigating or
defending any such claim, loss, damage, liability or action, but, in the case of
clause (ii) above, only to the extent that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with
-9-
information furnished to the Company by such Holder in writing specifically for
use in a registration statement. Notwithstanding the foregoing, the liability of
each Holder under this subsection 5.7(b) shall be limited in an amount equal to
the initial public offering price of the shares sold by such Holder, unless such
liability arises out of or is based on a Violation or willful misconduct by such
Holder.
(c) Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or there are separate
and different defenses. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party (whose
consent may be withheld in each indemnified party's discretion), consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
9. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration hereunder shall furnish to the Company
such information regarding such Holder or Holders, the Registrable Securities
held by them and the distribution proposed by such Holder or Holders as the
Company may request in writing and as shall be required in connection with any
registration referred to in this Agreement.
10. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration the Company agrees to
use all reasonable efforts, at any time after the second anniversary of the
Effective Date, to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) So long as a Holder owns any Restricted Securities, to furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting
-10-
requirements of said Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
11. Transfer of Registration Rights. The rights to cause the Company to
register securities granted to Holders under Section 5 may be assigned to a
transferee or assignee reasonably acceptable to the Company in connection with
any transfer or assignment of Registrable Securities by the Holder, provided
that (i) such transfer is otherwise effected in accordance with applicable
securities laws and the terms of this Agreement, (ii) such assignee or
transferee acquires at least 75,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends, stock combinations and the like),
(iii) written notice is promptly given to the Company and (iv) such transferee
agrees to be bound by the provisions of this Agreement. Notwithstanding the
foregoing, the rights to cause the Company to register securities may be
assigned without compliance with item (ii) above to (x) any constituent equity
holder of a Holder which is a partnership, limited liability company, or a
corporation or (y) a family member or trust for the benefit of a Holder who is
an individual, or a trust for the benefit of a family member of such a Holder.
12. Amendment. Except as otherwise provided above, any provision of this
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and holders of two
thirds of the Registrable Securities.
13. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware, without regard to conflict of laws
provisions.
14. Entire Agreement. This Agreement constitutes the full and entire
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
15. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth below such
Holder's signature on this Agreement, or at such other address as such Holder
shall have furnished to the Company, with a copy to:
Xxxxxxxxxx Rosentzveig Xxxxxxx
0000 Xxxxxxxxxx Xxxx
00xx Xxxxx
-00-
Xxxxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
(b) if to the Company, to:
American Business Information, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Fax: (402) ____-______
Attn: Corporate Secretary
or at such other address as the Company shall have furnished to the Holders,
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile transmission, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
"THE COMPANY"
American Business Information, Inc.,
a Delaware corporation
By: _____________________________
Title: _____________________________
3319971 Canada Inc.,
a Canadian corporation
By: _____________________________
Title: _____________________________
Address: __________________________
__________________________
