EXHIBIT 4.12
AGREEMENT AS TO REGISTRATION RIGHTS
The Company and the Holder of the Warrant to which this Agreement is attached
(this "Agreement") agree as follows:
---------
Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Holder" shall mean any holder of outstanding Registrable
------
Securities which have not been sold to the public, but only if
such holder is the Holder of the Warrant to which this
Agreement is attached or an assignee or transferee of
Registration Rights as permitted by Section 9.
(b) The terms "Register," "Registered" and "Registration" refer to
-------- ---------- ------------
a registration effected by preparing and filing a registration
statement in compliance with the Securities Act ("Registration
Statement"), and the declaration or ordering of the
effectiveness of such Registration Statement.
(c) "Registrable Securities" shall mean the 110,000 shares of
----------------------
Common Stock issued to Xxxxxxxx & Xxxxxxxx LLC on September 1,
2001, and the shares of Common Stock issuable upon exercise of
the Warrant to which this Agreement is attached, and any
Common Stock or other securities issued as a dividend or other
distribution with respect to, in exchange for, or in
replacement of such Registrable Securities, excluding, in all
cases, however, any Registrable Securities transferred by a
person in a transaction in which his rights are not assigned
in accordance with Section 9.
(d) "Registration Expenses" shall mean all expenses incurred by
---------------------
the Company in complying with Section 2 of this Agreement,
including, without limitation, all federal and state
registration, qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company,
Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration.
(e) "SEC" shall mean the Securities and Exchange Commission or any
---
other federal agency at the time administering the Securities
Act.
(f) "Securities Act" shall mean the Securities Act of 1933, as
--------------
amended, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(g) "Selling Expenses" shall mean all underwriting discounts,
----------------
selling commissions and expenses of counsel, if any, of
selling shareholders applicable to the sale of Registrable
Securities pursuant to this Agreement.
1
1. The Company shall immediately file a Registration Statement, or amend
its current Registration Statement, to cover the Registrable Securities. The
purpose of this provision is to give the Holder securities that are registered
as soon as possible.
2. Piggyback Registration.
----------------------
2.1. Notice of Piggyback Registration and Inclusion of Registrable
-------------------------------------------------------------
Securities.
----------
Subject to the terms of this Agreement, if at any time or from time to
time following the one year anniversary of this Agreement, the Company shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders other than (i) a registration on Form
S-8 or other form relating solely to employee stock option or purchase plans; or
(ii) a registration on Form S-4 or other form relating solely to an SEC Rule 145
transaction, then the Company will: (i) promptly give the Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable Blue Sky or
other state securities laws) and (ii) include, subject to the terms hereof, in
such Registration (and any related registration and/or qualification under Blue
Sky laws or other compliance), and in any underwriting (subject to Section 3.1)
involved therein, the Registrable Securities specified in a written request
delivered to the Company by the Holder within 10 days after delivery of such
written notice from the Company.
3. Underwriting.
------------
3.1. Notice of Underwriting.
----------------------
If a Registration for which the Company gives notice is for a
Registered public offering involving an underwriting, the Company shall so
advise the Holder. In such event, the
2
right of the Holder to Registration shall be conditioned upon such underwriting
and the inclusion of the Holder's Registrable Securities in such underwriting to
the extent provided in this Section 3. The Holder, if it intends to distribute
its securities through such underwriting, shall (together with the Company and
any other shareholder distributing their securities through such underwriting)
enter into an underwriting agreement negotiated exclusively by the Company with
the Underwriter's Representative for such offering. The Holder shall have no
right to participate in the selection of the underwriters for a Registered
offering pursuant to this Agreement.
3.2. Marketing Limitation.
--------------------
In the event the Underwriter's Representative advises the Holder in writing that
market or factors (including, without limitation, the aggregate number of shares
of Common Stock requested to be Registered, the general condition of the market,
and the status of the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be underwritten,
the Underwriter's Representative (subject to the allocation priority set forth
in Section 3.3) may limit (or reduce to zero) the number of shares of
Registrable Securities to be included in such Registration and underwriting;
provided, however, that any Registrable Securities so excluded shall retain any
and all Registration rights set forth in this Agreement.
3.3. Allocation of Shares.
--------------------
In the event that the Underwriter's Representative limits the number of shares
(other than shares to be issued by the issuer) to be included in a Registration
pursuant to Section 3.2, the number of shares to be included in such
Registration shall be allocated in the following manner: shares held by persons
other than the Company who are not legally entitled to include
3
shares in such Registration shall be excluded from such Registration and
underwriting to the extent required by such limitation. If a limitation of the
number of shares is still required after such exclusion, the number of shares
that may be included in the Registration and underwriting by selling
shareholders shall be allocated among the Holder and other holders of securities
other than Registrable Securities requesting and legally entitled to include
shares in such Registration, in proportion, as nearly as practicable, -to the
respective amounts of securities (including Registrable Securities) which the
Holder and such other holders would otherwise be entitled to include in such
Registration. No Registrable Securities or other securities excluded from the
underwriting by reason of this Section 3.3 shall be included in the Registration
Statement.
3.4. Withdrawal.
----------
If the Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter
delivered within three business days following the execution of the definitive
underwriting agreement relating to such offering. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
4. Blue Sky.
---------
In the event of any Registration of Registrable Securities pursuant to Section
2, the Company will exercise commercially reasonable effort to register and/or
qualify the securities covered by the Registration Statement under such other
securities or Blue Sky laws of such jurisdictions (not exceeding 20 unless
otherwise agreed to by the Company) as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of
4
process in any such states or jurisdictions; and (ii) notwithstanding anything
in this Agreement to the contrary, in the event any jurisdiction in which the
securities shall be qualified imposes a non-waivable requirement that expenses
incurred in connection with the qualification of the securities be borne by
selling shareholders, such expenses shall be payable pro rata by selling
shareholders.
5. Expenses of Registration.
------------------------
All Registration Expenses incurred in connection with Registration pursuant to
Section 2 shall be borne by the Company. All Selling Expenses shall be borne by
the selling shareholders pro rata on the basis of the number of shares
registered.
6. Registration Procedures.
-----------------------
The Company will keep the Holder, if its Registrable Securities are included in
any Registration pursuant to this Agreement, advised as to the initiation and
completion of such Registration. The Company shall: (a) use commercially
reasonable efforts to keep such Registration effective for a period of 180 days
or until the Holder has completed the distribution described in the Registration
Statement relating thereto, whichever first occurs; and (b) furnish such number
of prospectuses (including preliminary prospectuses) and other documents as the
Holder from time to time reasonably may request.
7. Information Furnished by Holder.
-------------------------------
It shall be a condition precedent of the Company's obligations under this
Agreement to include the Holder's Registrable Securities in any registration
that the Holder
5
timely furnish to the Company such information regarding the Holder and the plan
of distribution proposed by the Holder as the Company may reasonably request.
8. Indemnification.
---------------
8.1. Company's Indemnification of Holder.
-----------------------------------
To the extent permitted by law, the Company shall indemnify the Holder,
each of its officers, directors and constituent partners, and each person
controlling the Holder, with respect to which Registration, qualification or
compliance of Registrable Securities has been effected pursuant to this
Agreement against all claims, losses, damages or liabilities (or actions in
respect thereof) to the extent such claims, losses, damages or liabilities arise
out of or are based upon any untrue statement (or alleged untrue statements) of
a material fact contained in any prospectus or other document (including any
related Registration Statement) incident to any such Registration, qualification
or compliance, or are 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 not misleading, or any violation by the Company of any rule
or regulation promulgated under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with any
such Registration, qualification or compliance; and the Company will reimburse
the Holder, and each person who controls the Holder, for any legal and any other
expenses reasonably incurred (and at the time incurred) in connection with
investigation or defending any such claim, loss, damage, liability or action;
provided, however, that the indemnity contained in this Section 8 shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if settlement is effected without the written consent of the Company
(which consent shall not unreasonably be withheld); and provided,
6
further, 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
upon any untrue statement or omission based upon written information furnished
to the Company by such Holder, officer, director, partner, counsel or
controlling person for use in connection with the offering of securities of the
Company.
8.2. Holder's Indemnification of Company.
-----------------------------------
To the extent permitted by law, the Holder shall, if Registrable
Securities held by the Holder are included in the securities as to which such
Registration, qualification or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors, officers and employees,
each legal counsel and independent accountant of the Company, each underwriter,
if any, of the Company's securities covered by such a Registration Statement,
each person who controls the Company or such underwriter within the meaning of
the Securities Act, and each other such selling shareholder, each of its
officers, directors and constituent partners and each person controlling such
other shareholder, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based upon 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, or
any violation by the Holder of any rule or regulation promulgated under the
Securities Act applicable to the Holder and relating to action or inaction
required of the Holder in connection with any such Registration, qualification
or compliance; and will reimburse the Company, such shareholders, such
directors, officers and employees, partners, persons, law and accounting firms,
underwriters and control persons for any
7
legal and any other expenses reasonably incurred with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but 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 written information furnished to the Company by the Holder, or
an officer, director, constituent partner, counsel or controlling persons of
such Holder, for use in connection with the Registration and offering of
securities of the Company.
8.3. Indemnification Procedure.
-------------------------
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof
and generally summarize such action. The indemnifying party shall have the right
to participate in and to assume the defense of such claim; provided, however,
that the indemnifying party shall be entitled to select counsel for the defense
of such claim with the approval of any parties entitled to indemnification,
which approval shall not be unreasonably withheld; provided further, however,
that if either party reasonably determines that there may be a conflict between
the position of the Company and the Holder in conducting the defense of such
action, suit or proceeding by reason of recognized claims for indemnity under
this Section 8, then counsel for such party shall be entitled to conduct the
defense to the extent reasonably determined by such counsel to be necessary to
protect the interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
of the indemnifying party to defend such action, shall relieve such
8
indemnifying party, to the extent so prejudiced, of any liability to the
indemnified party under this Section 8.
9. Transfer of Rights.
------------------
The rights to cause the Company to register its securities granted to the
Holder by the Company in this Agreement may not be assigned by the Holder
without the prior written consent of the Company, except that Xxxxxxxx &
Xxxxxxxx LLC may assign its rights hereunder to an affiliate as defined in the
Securities Act.
10. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York as applied to contracts entered into by New York
residents and to be performed entirely within said state and without reference
to conflict of laws principles, other than Section 5-1401 of the General
Obligations Law of New York.
11. Amendment of Agreement.
----------------------
Any provision of this Agreement may be amended only by written instrument
signed by the Company and the Holder.
12. Notice.
------
Any notice provided under this Agreement shall be given in accordance with
the provision for notices set forth in the Warrant to which this Agreement is
attached.
One Voice Technologies, Inc.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
Senior Managing Director
Xxxxxxxx & Xxxxxxxx LLC
By: /s/ Xxxx Xxxxx
----------------------------------
Xxxx Xxxxx
Chairman, President and Chief
Executive Officer
10
