EXHIBIT 10.17
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT made as of February __, 2000, between
Perficient, Inc., a Delaware corporation (the "Company), and the individuals
listed on the signature page hereto (each, a "Holder" and, collectively, the
"Holders").
WHEREAS, the Holders have agreed to purchase shares of common stock,
par value $0.001 per share ("Common Stock"), of the Company pursuant to
Subscription Agreements (the "Subscription Agreements") and under the
Confidential Private Placement Memorandum dated January 27, 2000 (the
"Memorandum"); and
WHEREAS, as a condition to the consummation of private placement,
the Company has agreed to grant the Holders the rights provided hereunder
with respect to the shares of Common Stock.
NOW, THEREFORE, the parties have agreed as follows:
1. DEFINITIONS.
(a) The term "Commission" means the Securities and Exchange
Commission.
(b) The term "Other Securities" means at any time those
shares of Common Stock which do not constitute Primary Securities or
Registrable Securities.
(c) The term "Person" means a holder of Registrable
Securities whenever such Person has the right to acquire such Registrable
Securities (by conversion or otherwise, but disregarding any legal or other
restrictions upon the exercise of such right), whether or not such
acquisition has actually been effected.
(d) The term "Primary Securities" means at any time the
authorized but unissued shares of Common Stock or shares of Common Stock held
by the Company in its treasury.
(e) The term "Registrable Securities" means the Common
Stock issued to Holders under the Memorandum. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (b) such securities may be distributed by a Holder to
the public pursuant to Rule 144(k) (or any successor provision) under the
Securities Act, (c) such securities shall have been otherwise transferred,
new certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition
of such securities shall not require registration or qualification of such
securities under the Securities Act or any similar state law then in force,
or (d) such securities shall have ceased to be outstanding.
(f) The term "Registration Expenses" means all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, all registration, filing and NASD fees, all
stock exchange listing fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort letters" required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance against liabilities arising out of the public offering
of the Registrable Securities being registered and any fees and disbursements
of underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of any Holder's Registrable Securities
pursuant to the shelf registration statement and the expenses of any separate
fees for counsel for such Holder, PROVIDED THAT, in any case where
Registration Expenses are not to be borne by the Company, such expenses shall
not include salaries of the Company's personnel or general overhead expenses
of the Company, premiums or other expenses relating to liability insurance
required by underwriters of the Company or other expenses for the preparation
of financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have incurred in
any event.
(g) The term "Securities Act" means the Securities Act of
1933, as amended, or any successor law.
(h) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Memorandum.
2. CERTAIN RIGHTS OF THE HOLDERS.
(a) As soon as practicable following the Closing Date of
the private placement of shares of Common Stock offered under the Memorandum
(the "Closing Date") and in no event later than April 30, 2000, the Company
shall cause to be filed a registration statement under the Securities Act to
register the Registrable Securities and shall use its best efforts to cause
the registration statement to be declared effective by the Commission as soon
as possible thereafter; PROVIDED, HOWEVER, that the Company shall not be
required to maintain the effectiveness of any such registration for any
period following the earlier of the occurrence of (i) the sale of all
Registrable Securities or (ii) such time as Rule 144(k) is available for the
sale of the Registrable Securities. The Company will not file any
registration statement under the Securities Act, unless it shall first have
given to each Holder, at least 10 days prior written notice thereof. If any
such registration statement refers to any Holder by name or otherwise as the
holder of any securities of the Company, then such Holder shall have the
right within such 10 day period to require (i) the insertion therein of
language, in form and substance satisfactory to such Holder to the effect
that the holding by the Holder of such securities does not necessarily make
the Holder a "controlling person" of the Company within the meaning of the
Securities Act and is not to be construed as a recommendation by such Holder
of the investment quality of the Company's debt or equity securities covered
thereby and that the Holder will assist in meeting any future financial
requirements of the Company or (ii) in the event that such reference to such
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Holder by name or otherwise is not required by the Securities Act or any
rules and regulations promulgated thereunder, the deletion of the reference
to the Holder. If such Holder does not respond within such 10 day period, the
Company may proceed with the filing.
(b) PIGGYBACK REGISTRATION. (i) If, at any time following
the Closing Date and ending on the ten-year anniversary of such Closing Date,
the Company proposes to prepare and file one or more registration statements
or post-effective amendments thereto covering equity or debt securities of
the Company, or any such securities of the Company held by its shareholders
(in any such case, other than in connection with a merger, acquisition or
pursuant to Form S-8 or successor form) (for purposes of this Section,
collectively, the "Registration Statement"), it will give written notice of
its intention to do so by registered mail ("Notice"), at least thirty (30)
business days prior to the filing of each such Registration Statement, to the
Holders. Upon the written request of any Holder (a "Requesting Holder"), made
within twenty (20) business days after receipt of the Notice, that the
Company include any of the Requesting Holder's Registrable Securities in the
proposed Registration Statement, the Company shall use its best efforts to
effect the registration under the Act of the Registrable Securities which it
has been so requested to register ("Piggyback Registration"), at the
Company's sole cost and expense and at no cost or expense to the Requesting
Holder provided, however, that if, in the written opinion of the Company's
managing underwriter, if any, for such offering, the inclusion of all or a
portion of the Registrable Securities requested to be registered, when added
to the securities being registered by the Company or the selling
shareholder(s), will exceed the maximum amount of the Company's securities
which can be marketed (i) at a price reasonably related to their then current
market value, or (ii) without otherwise materially adversely affecting the
entire offering, then the Company may exclude from such offering all or a
portion of the Registrable Securities which it has been requested to register.
(ii) If securities are proposed to be offered for
sale pursuant to such Registration Statement by other security holders of the
Company and the total number of securities to be offered by the Requesting
Holder and such other selling security holders is required to be reduced
pursuant to a request from the managing underwriter (which request shall be
made only for the reasons and in the manner set forth above) the aggregate
number of Registrable Securities to be offered by the Requesting Holder
pursuant to such Registration Statement shall equal the number which bears
the same ratio to the maximum number of securities that the underwriter
believes may be included for all the selling security holders (including the
Requesting Holder) as the original number of Registrable Securities proposed
to be sold by the Requesting Holder bears to the total original number of
securities proposed to be offered by the Requesting Holder and the other
selling security holders.
(iii) If any Registrable Securities requested to
be included in a Piggyback Registration are not so included because of the
operation of the proviso of the first paragraph of this Section 2(b), then
the holders of such excluded Registrable Securities shall have the right to
require the Company, at its expense, to prepare and file another Registration
Statement under the Act covering such Registrable Securities, provided that,
if the underwriter so requests, such Registrable Securities shall not be sold
until the expiration of 90 days from the effective date of the offering that
gave rise to the piggyback registration rights that are the
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subject of this Section 2(b). Nothing contained in the foregoing sentence
shall require the Company to undergo an audit, other than in the ordinary
course of business.
(iv) Notwithstanding the provisions of
this Section 2(b), the Company shall have the right at any time after it
shall have given written notice pursuant to this Section 2(b) (irrespective
of whether any written request for inclusion of such securities shall have
already been made) to elect not to file any such proposed Registration
Statement, or to withdraw the same after the filing but prior to the
effective date thereof.
(c) DEMAND REGISTRATION. At any time during a period of ten
years from the Closing Date, Holders owning more than 50% of the aggregate
Registrable Securities outstanding shall have the right (which right is in
addition to the piggyback registration rights provided for under Section 2(b)
hereof), exercisable by written notice to the Company (the "Demand
Registration Request"), to have the Company prepare and file with the
Securities and Exchange Commission (the "Commission") no more than on one
occasion, a Registration Statement and such other documents, including a
prospectus, as may be necessary (in the opinion of both counsel for the
Company and counsel for such Holders), in order to comply with the provisions
of the Securities Act, so as to permit a public offering and sale of the
Registrable Securities by the Holder PROVIDED, HOWEVER, that the Company
shall not be required to effect a Registration pursuant to this Section 2(b)
unless at least 250,000 shares of the Registrable Securities are proposed to
be sold in such registration (as adjusted for any stock split, stock dividend
or similar change in the Common Stock). The Company shall not be required to
maintain the effectiveness of any such registration for greater than nine
months. The form on which such registration shall be filed shall be
determined by the Company from among the forms then available to it under the
Securities Act for such registration.
(d) Notwithstanding the foregoing, the Company may delay
filing a registration statement and may withhold efforts to cause the
registration statement to become or remain effective, if the Company
determines in good faith that such registration might (i) interfere with or
affect the negotiation or completion of any transaction that is being
contemplated by the Company at the time the right to delay is exercised, or
(ii) involve initial or continuing disclosure obligations that might not be
in the best interest of the Company's shareholders. Notwithstanding the
foregoing, (A) the Company shall not be entitled to exercise its right to
defer filing or effectiveness of a registration pursuant to a Demand
Registration Request for more than ninety (90) consecutive days, and (B) the
Company may not exercise the foregoing right more than two times in any
365-day period, with not less than ninety (90) days between the end of one
suspension period and the beginning of the next one.
3. REGISTRATION PROCEDURES.
(a) If the Company is required to effect the registration
of the Registrable Securities under the Securities Act as provided in Section
2, the Company shall, as expeditiously as possible (and in all events subject
to Section 2):
(i) prepare and file with the Commission the
requisite registration statement to effect such registration (including such
audited financial statements as may be
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required by the Securities Act or the rules and regulations promulgated
thereunder) and thereafter cause such registration statement to become and
remain effective, PROVIDED, HOWEVER, that before filing such registration
statement or any amendments thereto, the Company will furnish to each Holder
copies of all such documents proposed to be filed, which documents will be
subject to its review in accordance with Section 3(b);
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition
by each Holder set forth in such registration statement;
(iii) furnish to each Holder (or underwriter, if
any, of the securities being sold by such Holder) such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents as, such
Holder (and each such underwriter, if any) may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
(iv) use its best efforts to register or qualify
all Registrable Securities and other securities covered by such registration
statement under such other securities laws or blue sky laws of such
jurisdictions as any Holder (and any underwriter of the Registrable
Securities being sold) shall reasonably request, to keep such registrations
or qualifications in effect for so long as such registration statement
remains in effect, and take any other action which may be necessary or
advisable to enable such Holder (and underwriter, if any) to consummate the
disposition in such jurisdictions of the Registrable Securities except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (iv) be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable each Holder to consummate the disposition of such
Registrable Securities;
(vi) notify each Holder (and the managing
underwriter or underwriters, if any) promptly and confirm such advice in
writing promptly thereafter:
(A) when the registration statement, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement
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has been filed, and, with respect to the registration statement or any
post-effective amendment thereto, when the same has become effective:
(B) of any request by the Commission for
amendments or supplements to the registration statement or the prospectus or
for additional information;
(C) of the issuance by the Commission of
any stop order suspending the effectiveness of the registration statement or
the initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations
and warranties of the Company cease to be true and correct;
(E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose;
(vii) notify each Holder, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, promptly but within a reasonable period of time given the
circumstances, file with the Commission such amendments or supplements to
such registration statement so that 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 and promptly furnish
to such Holder (and each underwriter, if any) a reasonable number of copies
of such supplement to or an amendment of such prospectus as they may
reasonably request;;
(viii) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
(ix) otherwise use reasonable efforts to comply
with all applicable rules and regulations of the Commission and will furnish
to each Holder at least five business days prior to the filing thereof a copy
of any amendment or supplement to such registration statement or prospectus
and shall not file any thereof to which any Holder shall have reasonably
objected on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(x) make available for inspection by any Holder,
any underwriter participating in any disposition pursuant to the registration
statement and any attorney or accountant retained by such Holder or such
underwriter (each, an "Inspector"), all financial and other records,
pertinent corporate documents and properties of the Company (the "Records"),
and cause the Company's officers, directors and employees to supply all
information reasonably
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requested by any such Inspector in connection with such registration in order
to permit a reasonable investigation within the meaning of Section 11 of the
Securities Act;
(xi) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective
date of such registration statement;
(xii) enter into such agreements and take such
other actions as any Holder shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xiii) use its best efforts to list all
Registrable Securities covered by such registration statement on any
securities exchange on which any of the securities of the same class as the
Registrable Securities are then listed;
(xiv) use its best efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective date of
the registration statement; and
(xv) file such periodic and other reports as may
be required pursuant to the Exchange Act.
(b) Each Holder agrees that, upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
subdivision (vii) of this Section, such Holder will forthwith and for a
reasonable time discontinue disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
required by subdivision (vii) of this Section.
(c) Notwithstanding the foregoing, at such time as the
Company is eligible to register any of the Registrable Securities on a
registration statement on Form S-3, the Company may utilize such a
registration statement to cause the registration of such shares.
4. INDEMNIFICATION BY THE COMPANY.
(a) GENERAL RIGHTS.
(i) In the event of any registration of any
securities of the Company under the Securities Act, the Company will, and
hereby does agree to, indemnify and hold harmless in the case of any
registration statement of the Company, the Holders and any underwriter
including the respective directors, officers, agents and controlling persons
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), if any, of each Holder and such underwriters against any
losses, claims, damages, liabilities or expense, joint or several, to which
the Holder (or any underwriter) or any such director, officer, agent or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise
out of or based upon any untrue statement or alleged
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untrue statement of any material fact contained in any registration statement
under which securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, 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 the Company will
reimburse each Holder (or any underwriter) and each such director, officer,
agent and controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; PROVIDED THAT the Company
shall not be liable in such case to the extent that any such loss, claim,
damage, liability or action or proceeding in respect thereof or expense
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement exclusively in reliance upon and in
conformity with information furnished to the Company through an instrument
duly executed by such Holder, specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder (or
underwriter, if any) or any such director, officer, agent or controlling
person and shall survive the transfer of such securities by such Holder.
(ii) Each Holder will, if Registrable Securities
held by him are included in the securities as to which such registration,
qualification or compliance is being effected, severally (but not jointly)
indemnify and hold harmless the Company and the directors, officers, agents
and controlling persons, if any, of the Company against any losses, claims,
damages, liabilities or expense to which the Company and the directors,
officers, agents and controlling persons, if any, of the Company may become
subject under the Securities Act insofar as such losses, claims, damages,
liabilities or expense arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which the Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, 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, in
each case to the extent (and only to the extent) that such loss, claim,
damage, liability or expense occurs in exclusive reliance upon and in
conformity with written information furnished by such Holder expressly for
use in connection with such registration; provided that such Holder shall be
liable under this paragraph for only that amount of losses, claims, damages,
liabilities or expense as does not exceed the proceeds to such Holder as a
result of the sale of Registrable Securities pursuant to such registration.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer, agent or controlling person.
(b) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section,
such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, PROVIDED THAT the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding
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subdivisions of this Section, except to the extent that the indemnifying
party is actually prejudiced in a material manner by such failure to give
notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying party 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 liable to
such indemnified party for any legal or other expenses subsequently incurred
by the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement of any such action 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, or a covenant not to xxx, in respect to such
claim or litigation. No indemnified party shall consent to entry of any
judgment or enter into any settlement of any such action the defense of which
has been assumed by an indemnifying party without the consent of such
indemnifying party.
(c) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section (with appropriate
modifications) shall be given by the Company and the Holders with respect to
any required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(d) INDEMNIFICATION PAYMENTS. The indemnification required
by this Section shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(e) CONTRIBUTION. If the indemnification provided for in
the preceding subdivisions of this Section is unavailable to an indemnified
party in respect of any loss, claim, damage, liability or expense referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or
expense, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of such Holder or underwriter, as the case
may be, on the other in connection with the statements or omissions which
resulted in such loss, claim, damage, liability or expense, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of such Holder or underwriter, as the case may be, on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by such Holder
or by the underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
PROVIDED THAT the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to
such indemnified party by reason of the provisions contained in the first
sentence of subdivision (a) of this Section and in no event shall the
obligation of any indemnifying party to contribute under this subdivision (e)
exceed the amount that such indemnifying party would
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have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this Section had been available
under the circumstances. Notwithstanding the provisions of this subdivision
(e), neither the Holders nor the underwriter shall be required to contribute
any amount in excess of the amount by which (i) in the case of any Holder,
the net proceeds received by such Holder from the sale of Registrable
Securities or (ii) in the case of an underwriter, the total price at which
the Registrable Securities purchased by it and distributed to the public were
offered by the public exceeds, in either such case, the amount of any damages
that such Holder or underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
5. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities
in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not take any action, or permit any change to occur, with respect
to its securities which would adversely affect the ability of the Holders to
include Registrable Securities in a registration statement undertaken
pursuant to this Agreement or which would adversely affect the ability of the
Holders to sell such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, if and only if the Company has obtained the written
consent of the Holders.
(d) SUCCESSORS AND ASSIGNS. The rights to cause the Company
to register securities granted to a Holder by the Company under this
Agreement may be transferred or assigned by a Holder only to a transferee or
assignee of not less than 50,000 shares of Registrable Securities (as
presently constituted and subject to subsequent adjustments for stock splits,
stock dividends, reverse stock splits, and the like), provided that the
Company is given written notice at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of the
transferee or assignee and identifying the securities with respect to which
such registration rights are being transferred or assigned and, provided
further, that the transferee or assignee of such rights assumes the
obligations of such Holder under this Agreement. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable
Securities.
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(e) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York without giving
effect to conflicts of law principles thereof.
(f) CONSTRUCTION. Section headings of this Agreement are
for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
(g) SEVERABILITY. In the event that any provision hereof
would, under applicable law, be invalid or enforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid
and enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
(h) JOINT AGREEMENT. The provisions of this Agreement and
each document delivered pursuant hereto shall be deemed to be the joint
effort of each of the parties hereto and shall not be construed more severely
or strictly against any one or more parties.
(i) NOTICES. Except as otherwise provided in this
Agreement, all notices, requests and other communications shall be in writing
and shall be given to the Holder addressed to it in the manner set forth in
the Subscription Agreement applicable to such Holder or at such other address
as any Holder shall have furnished to the Company in writing, and to the
Company, to the attention of its Chief Executive Officer, or at such other
address, or to the attention of such other officer, as the Company shall have
furnished to the Holders. Each such notice, request or other communication
shall be effective (i) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid or (ii) if given by any other means (including, without limitation,
by air courier), when delivered at the address specified above, PROVIDED that
any such notice, request or communication shall not be effective until
received.
(j) COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
(k) UNDERWRITER HOLDBACK. All Holders that purchase less
than 150,000 shares of the Registrable Securities in the Offering pursuant to
the Memorandum agree that if the Company proposes to offer securities
pursuant to a Registration Statement under the Securities Act pursuant to a
firm commitment underwritten public offering, then such Holders will, if
requested by the Underwriter of such proposed public offering, enter into
such agreement that may be requested, agreeing not to sell, pledge,
hypothecate or otherwise dispose of any Registrable Securities for the same
period of time that is requested of officers, directors and principal
stockholders of the Company.
(k) SPECIFIC PERFORMANCE. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform
any of its other obligations hereunder,
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and accordingly agree that each party, in addition to any other remedy to
which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in
any court of the United States or any State thereof having jurisdiction. Any
remedy hereunder is subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought.
(l) ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties and understanding between the Company and the
Holders relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PERFICIENT, INC.
By:
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Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
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