EXHIBIT 10.14
LIGHTFIRST INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered into
as of the first day of May, 2001, by and between LightFirst Inc., a Delaware
corporation (the "Corporation"), and Xxxxxxx Xxxxxxx (the "Stockholder").
RECITALS
A. The Stockholder has agreed to purchase 600,000 shares (the "Shares")
of the Corporation's Common Stock with the understanding that he will receive
securities registration rights with respect to the Shares.
B. The Corporation deems it desirable for the Corporation to grant
certain securities registration rights to the Stockholder in order to induce the
Stockholder to purchase the Shares.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENTS
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Common Stock" shall mean the common stock of the Corporation,
$0.001 par value per share.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
(c) "Registrable Securities" shall mean at any time: (i) any shares of
Common Stock then outstanding which were issued pursuant to the
Common Stock Purchase Agreement, dated May 1, 2001, between the
Corporation and the Stockholder; and (ii) any shares of Common
Stock issued or issuable with respect to shares of Common Stock
identified in subsection (i) by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As
to any particular Registrable Securities, such securities will
cease to be Registrable Securities when they have: (x) been
effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering them; (y) been
sold to the public in accordance with Rule 144 (or any similar
provision then in force) promulgated under the Securities Act; or
(z) been
otherwise transferred and new certificates for them not bearing
a restrictive legend have been delivered by the Corporation.
(d) "Registration Expenses" shall mean all expenses incident to the
Corporation's performance of or compliance with this Agreement,
including, all registration, listing and filing fees, registrars'
and transfer agents' fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and
delivery expenses, fees and disbursements of counsel for the
Corporation and all independent certified public accountants
(including the expenses of any audits and "cold comfort" letters),
underwriters (including underwriter's counsel and the preparation
of any "blue sky" memorandum or surveys, but excluding discounts
and commissions) and other persons or entities retained by the
Corporation and reasonable fees and expenses of a single legal
counsel chosen by the Stockholder and reasonably acceptable to the
Corporation to represent the Stockholder in connection with a
Piggyback Registration (as hereinafter defined).
(e) "Registration Statement" shall mean a registration statement filed
pursuant to the Securities Act on Form X-0, X-0, X-0, XX-0 or SB-2
(but not on Form S-8 or any successor form) or any similar
registration statement pursuant to which the Registrable Securities
may be registered.
(f) "Securities Act" shall mean the Securities Act of 1933, as amended,
and all rules and regulations promulgated thereunder.
2. PIGGYBACK REGISTRATION. As used in this Agreement, the following terms
shall have the following meanings:
2.1 RIGHT TO PIGGYBACK. If the Corporation determines to register any
of its securities either for its own account or the account of a
shareholder(s) exercising demand registration rights (other than a
registration relating solely to employee benefit plans, or a
registration relating solely to a transaction pursuant to Rule 145
promulgated under the Securities Act or a registration on any
registration form which does not permit secondary sales or does not
include substantially the same information as would be required to
be included in a Registration Statement covering the sale of the
Registrable Securities), the Corporation shall promptly give to
Stockholder written notice thereof and include in such registration
(and any related qualification under blue sky laws), and in any
underwriting involved therein, the number of Registrable Securities
specified in a written request made by the Stockholder within ten
(10) days after receipt of such written notice from the
Corporation.
2.2 PRIORITY ON REGISTRATIONS. If the registration of which the
Corporation gives notice is for a registered public offering
involving an underwriting, the Stockholder's right to registration
shall be conditioned upon (i) the Stockholder's participation in
such underwriting and (ii) the inclusion of the Registrable
Securities in the underwriting pursuant to an underwriting
agreement in customary form with the underwriter or underwriters
selected by the Corporation; provided, however, that in the event
of any
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reduction in the securities to be included in the registration, the
securities that may be included in the registration and
underwriting shall be allocated (1) first, to the Corporation, and
(2) second, among the Stockholder and the other security holders
distributing their securities through such underwriting, in
proportion (as nearly as practicable) to the number of shares owned
by each such party.
2.3 PIGGYBACK EXPENSES. All Registration Expenses incurred by the
Corporation or the Stockholder in connection with any Piggyback
Registration will be paid by the Corporation.
3. DEMAND REGISTRATIONS.
3.1 REQUESTS FOR REGISTRATION. Subject to the terms of this Agreement,
the Stockholder, at any time commencing one year after the date the
Corporation's first registration statement filed pursuant to the
Securities Act is declared effective by the Securities and Exchange
Commission, request that the Corporation file a Registration
Statement with respect to all or part of their Registrable
Securities. Within ten (10) days after receipt of any such request,
the Corporation will give written notice of such request to all
other holders and will include in such registration all Registrable
Securities with respect to which the Corporation has received
written requests for inclusion therein within fifteen (15) days
after the receipt or refusal of receipt of the Corporation's
notice. All registrations requested pursuant to this Paragraph 3
are referred to herein as "Demand Registrations."
3.2 NUMBER OF DEMAND REGISTRATIONS. The holders will be entitled to
request two (2) Demand Registrations pursuant to which the
Registrable Securities shall be registered and in which the
Corporation will pay all Registration Expenses. A registration will
not count as one of the permitted Demand Registrations (i) until it
has become effective (unless such Demand Registration has not
become effective due solely to the fault of the holders requesting
such registration) and (ii) unless the holders are able to register
at least ninety percent (90%) of the Registrable Securities
requested to be included in such registration (unless such holders
are not so able to register such amount of the Registrable
Securities due solely to the fault of such Holders); provided,
however, that in any event the Corporation will pay all
Registration Expenses in connection with any registration initiated
as a Demand Registration.
3.3 PRIORITY ON DEMAND REGISTRATIONS. The Corporation will not include
in any Demand Registration any securities which are not Registrable
Securities without the written consent of the Stockholder. If other
securities are permitted to be included in a Demand Registration
which is an underwritten offering and the managing underwriters
advise the Corporation in writing that in their opinion the number
of Registrable Securities and other securities requested to be
included exceeds the number of Registrable Securities and other
securities which can be sold in such offering, the Corporation will
include in such registration, prior to the inclusion of any
securities which are not Registrable Securities, the number of
Registrable Securities requested to be included which in the
opinion of such underwriters can be sold, pro
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rata among the respective holders on the basis of the amount of
Registrable Securities so requested to be included therein.
3.4 SELECTION OF UNDERWRITERS. The Corporation shall have the right to
select the investment banker(s) and manager(s) to administer any
Demand Registration.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
in a Piggyback Registration pursuant to this Agreement, the Corporation
will use its reasonable efforts to effect the registration and the sale
of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Corporation will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such
securities, not to exceed 180 days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used
in connection therewith as may be necessary to keep such
Registration Statement effective for a period of not less than six
months and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration Statement;
(c) furnish to each seller of Registrable Securities and the
underwriters of the securities being registered such number of
copies of such Registration Statement, each amendment and
supplement thereto, the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other
documents as such seller or underwriters may reasonably request in
order to facilitate the disposition of the Registrable Securities
owned by such seller or the sale of such securities by such
underwriters;
(d) use its reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such
seller (provided, however, that the Corporation will not be
required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in
any such jurisdiction);
(e) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the
Corporation are then listed;
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(f) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement;
(g) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as
the Stockholder or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of the Registrable
Securities being sold (including, without limitation, effecting a
stock split or a combination of shares);
(h) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent corporate
documents and properties of the Corporation, and cause the
Corporation's officers, directors, employees and independent
accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in
connection with such Registration Statement, including, without
limitation, any earning statement provided pursuant to Section
11(a) of the Securities Act;
(i) notify each seller of such Registrable Securities, promptly after
it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any prospectus
forming a part of such Registration Statement has been filed; and
(j) notify each seller of such Registrable Securities of any request by
the Commission for the amending or supplementing of such
Registration Statement or prospectus or for additional information;
(k) prepare and file with the Commission, promptly upon the request of
any seller of such Registrable Securities, any amendments or
supplements to such Registration Statement or prospectus which, in
the opinion of counsel selected by the Stockholder, is required
under the Securities Act or the rules and regulations thereunder in
connection with the distribution of Registrable Securities by such
seller;
(l) prepare and promptly file with the Commission and promptly notify
each seller of such Registrable Securities of the filing of such
amendment or supplement to such Registration Statement or
prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act,
any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
(m) advise each seller of such Registrable Securities, promptly after
it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission
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suspending the effectiveness of such Registration Statement or the
initiation or threatening of any proceeding for such purpose and
promptly use all reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be
issued.
5. INDEMNIFICATION.
5.1 THE CORPORATION. The Corporation agrees to indemnify and hold
harmless, to the extent permitted by law, the Stockholder in the
event that the Stockholder includes any Registrable Securities in a
Piggyback Registration, its managers, officers and directors and
each person or entity who controls such Stockholder (within the
meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses, as incurred, arising out of, based upon
or caused by any untrue or alleged untrue statement of material
fact contained or required to be contained in any Registration
Statement (including all documents incorporated therein by
reference), prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished to the
Corporation by the Stockholder in writing expressly for use therein
or which the Stockholder failed to provide or by the Stockholder's
failure to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto after the
Corporation has furnished the Stockholder with a sufficient number
of copies of the same or which is otherwise attributable of the
negligence or willful misconduct of the Stockholder. In connection
with an underwritten offering, the Corporation will indemnify such
underwriters, their officers and directors and each person or
entity who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect
to the indemnification of the Stockholder.
5.2 THE STOCKHOLDER. In connection with any Registration Statement in
which the Stockholder is participating, each Stockholder will
furnish to the Corporation in writing, within 15 days after request
therefor, such information and affidavits as the Corporation
reasonably requests for use in connection with any such
Registration Statement or prospectus and agrees to indemnify and
hold harmless, to the extent permitted by law, the Corporation, its
directors and officers and each person or entity who controls the
Corporation (within the meaning of the Securities Act), against any
losses, claims, damages, liabilities and expenses, as incurred,
arising out of, based upon or caused by any untrue or alleged
untrue statement of material fact contained or required to be
contained in such Registration Statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission or alleged untrue statement or alleged omission is caused
by or contained or required to be contained in any information or
affidavit so furnished or required to be so furnished by the
Stockholder or by the Stockholder's failure to deliver a copy of
the Registration Statement or prospectus or any amendments or
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supplements thereto after the Corporation has furnished the
Stockholder with a sufficient number of copies of the same or which
is otherwise attributable to the negligence or willful misconduct
of the Stockholder. Notwithstanding the foregoing, the obligation
of the Stockholder to indemnify contained herein will be several,
not joint and several, among the Stockholder and any other security
holders distributing securities pursuant to any Registration
Statement, and the liability of the Stockholder will be in
proportion to and limited to the net amount received by the
Stockholder from the sale of Registrable Securities pursuant to
such Registration Statement. In connection with an underwritten
offering, the Stockholder will indemnify such underwriters, their
officers and directors and each person or entity who controls such
underwriters (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the
Corporation.
5.3 NOTICE. Any person or entity entitled to indemnification hereunder
will: (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification; and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim, with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without the indemnifying
party's consent (but such consent will not be unreasonably withheld
so long as the indemnified party receives a complete release from
any and all liability). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to
such claim.
5.4 SURVIVAL. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any
officer, director or controlling person or entity of such
indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party
in the event the Company's indemnification is unavailable for any
reason.
6. MISCELLANEOUS.
6.1 NO INCONSISTENT AGREEMENTS. The Corporation will not hereafter
enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement.
6.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Corporation will
not take any action or permit any change to occur with respect to
its securities which would
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materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would
materially and adversely affect the marketability of such
Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
6.3 REMEDIES. Any person or entity having rights under any provision of
this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of
any provision of this Agreement, and to exercise all other rights
granted by law.
6.4 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended and the Corporation may
take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Corporation has
obtained the written consent of the Stockholder.
6.5 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind
and inure to the benefit of the respective successors and assigns
of the parties hereto whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions
of this Agreement which are for the benefit of purchasers or
holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
6.6 HEADINGS. The headings of various paragraphs of this Agreement have
been inserted for reference only and shall not be a part of this
Agreement.
6.7 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid
under applicable law. If, however, any provision of this Agreement
shall be determined by a court of competent jurisdiction to be
invalid or unenforceable, such provisions shall be ineffective to
the extent of such invalidity or unenforceability, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement.
6.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois without
reference to (i) its judicially or statutorily pronounced rules
regarding conflict of laws or choice of law; (ii) where any
instrument is executed or delivered; (iii) where any payment or
other performance required by any such instrument is made or
required to be made; (iv) where any breach of any provision of any
such instrument occurs, or any cause of action otherwise accrues;
(v) where any action or other proceeding is instituted or pending;
(vi) the nationality, citizenship, domicile, principal place of
business, or jurisdiction or organization or domestication of any
party; (vii) whether the laws of the form jurisdiction otherwise
would apply the laws of a jurisdiction other than the State of
Illinois; or (viii) any combination of the foregoing.
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6.9 NOTICES. Any notice required or permitted to be given hereunder
shall be in writing, and shall be either (i) personally delivered,
(ii) sent by U.S. certified or registered mail, return receipt
requested, postage prepaid, or (iii) sent by Federal Express or
other reputable common carrier guaranteeing next business day
delivery, to the respective addresses of the parties set forth
below, or to such other place as any party hereto may by notice
given as provided herein designate for receipt of notices
hereunder. Any such notice shall be deemed given and effective upon
receipt or refusal of receipt thereof by the primary party to whom
it is to be sent.
If to the Corporation: LightFirst Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
If to the Stockholder: Xxxxxxx Xxxxxxx
00 Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
6.10 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties with regard to the
subject matter hereof, and there are no other prior or
contemporaneous written or oral agreements, undertakings, promises,
warranties, or covenants respecting such subject matter not
expressly set forth herein.
6.11 COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, any of which may contain the signatures of
less than all parties, and all of which together shall constitute a
single agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
LIGHTFIRST INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Its: President
STOCKHOLDER
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
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