Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
by and among
ARINCO COMPUTER SYSTEMS INC.
and the Persons referred to herein
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March 28, 2000
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Table of Contents
Page
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1. Registration on Request.............................................1
2. Incidental Registration.............................................3
3. Registration Procedures.............................................4
4. Underwritten Offerings..............................................8
5. Preparation; Reasonable Investigation..............................10
6. Rights of Requesting Holders.......................................11
7. Registration Expenses..............................................11
8. Indemnification and Contribution...................................11
9. Registration Rights to Others......................................14
10. Nominees for Beneficial Owners.....................................14
11. Rule 144...........................................................15
12. Definitions........................................................15
13. Miscellaneous......................................................17
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 28, 2000, by and among
ARINCO COMPUTER SYSTEMS INC., a New Mexico corporation (the "Company"), Pangea
Internet Advisors LLC, a Delaware limited liability company ("Pangea"), and the
Persons (the "Purchasers") party to the Securities Purchase Agreement (defined
below) as "Purchasers" (collectively with Pangea, the "Holders").
This Agreement is made in connection with the Securities Purchase
Agreement, dated as of March 9, 2000, by and among the Company and the
Purchasers (the "Securities Purchase Agreement"), pursuant to which the Company
has agreed to issue and sell to the Purchasers shares of the Company's Series B
Convertible Preferred Stock, par value $.10 per share (the "Preferred Stock"),
and Warrants ("Warrants") to purchase shares of the Company's Common Stock, par
value $.01 per share (the "Common Stock"). In order to induce the Holders to
purchase the shares of Preferred Stock and the Warrants, the Company has agreed
to grant registration rights with respect to the Registrable Securities (defined
below) as set forth in this Agreement. Capitalized terms used herein and not
otherwise defined shall have the respective meanings given them in Section 12.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Registration on Request.
(a) Request. Except as otherwise provided in this Section 1, at any time
and from time to time after the first anniversary of the date hereof, upon the
written request of one or more Initiating Holders requesting that the Company
effect a registration under the Securities Act of all or any part of such
Initiating Holders' Registrable Securities, and specifying the intended method
or methods of disposition thereof, the Company will promptly, but in any event
within ten (10) days after receipt of such written request, give written notice
of such requested registration to all holders of Registrable Securities, and
thereupon will use its best efforts to effect, as reasonably expeditiously as
practicable, the registration under the Securities Act, including by means of a
shelf registration pursuant to Rule 415 under the Securities Act if so requested
in such request (but in the case of a shelf registration only if the Company is
then eligible to use Form S-2 or S-3 (or any successor forms) for such a shelf
registration), of:
(i) the Registrable Securities which the Company has been so requested
to register by such Initiating Holder(s), for disposition in
accordance with the intended method or methods of disposition stated in
such request, and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request
delivered to the Company within thirty (30) days after the giving of
such written notice by the Company (which request shall specify the
intended method or methods of disposition thereof),
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided that the reasonably anticipated aggregate price to the
public of such offering would be at least $5,000,000; and provided further that
any holder of Registrable Securities to be included in any such registration, by
written notice to the Company within ten (10) days after its receipt of a copy
of a notice from the managing underwriter delivered pursuant to Section 4(a) may
withdraw such request and, upon receipt of such notice of the withdrawal of such
request from holders comprising the Requisite Holders, the Company may elect not
to effect such registration; and provided further, that the Company shall not be
required to pay Registration Expenses in connection with a registration request
pursuant to this Section 1 if such request is withdrawn by the Requisite
Holders.
(b) Number of Registrations. The Company shall not be required to effect
more than three (3) registrations, plus three (3) additional registrations if
the Company is then eligible to use Form S-3 (for a total of six (6)), pursuant
to this Section 1.
(c) Registration Statement Form. Registrations under this Section 1
shall be on such appropriate registration form of the Commission (i) as shall be
requested by the Requisite Holders (provided that the Company is then eligible
to use such form) and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request for their registration.
(d) Effective Registration Statement. A registration requested pursuant
to this Section 1 shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become effective, (ii) if the
registration does not remain effective for a period of at least ninety (90) days
(or, with respect to any registration statement filed pursuant to Rule 415 under
the Securities Act, for a period of at least nine (9) months) or, in either case
if earlier, until all the Registrable Securities requested to be registered in
connection therewith are sold or withdrawn by the participating Holders, (iii)
if, after it has become effective, such registration is subject to any stop
order, injunction or other order or requirement of the Commission
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or other governmental agency or court for any reason not attributable to actions
taken by the holders of Registrable Securities, or (iv) if the 3 conditions to
closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied and no such closing
occurs, other than by reason of some act or omission by the holders of the
Registrable Securities that were to have been registered.
(e) Registration of Other Securities. Whenever the Company shall effect
a registration pursuant to this Section 1, no securities other than Registrable
Securities shall be included among the securities covered by such registration
unless (i) holders of Registrable Securities requesting registration thereof
pursuant to Section 1, representing not less than 50% of the Registrable
Securities with respect to which registration has been requested, shall have
consented in writing to the inclusion of such other securities or (ii) such
inclusion would not have the effect of reducing the amount of Registrable
Securities included in such registration.
(f) Postponement. The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding sixty (60) days) the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to this Section 1 if the Company determines, in its reasonable
judgment, that such registration and offering would interfere with any material
financing, acquisition, corporate reorganization or other material transaction
involving the Company and promptly gives the holders of Registrable Securities
requesting registration thereof pursuant to this Section 1 written notice of
such determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. The Company may not
postpone a filing pursuant to this Section 1(f) more than once in any
twelve-month period. If the Company shall so postpone the filing of a
registration statement, holders of Registrable Securities requesting
registration thereof pursuant to Section 1, representing not less than 15% of
the Registrable Securities with respect to which registration has been requested
and constituting not less than 50% of the Initiating Holders, shall have the
right to withdraw the request for registration by giving written notice to the
Company within thirty (30) days after receipt of the notice of postponement and,
in the event of such withdrawal, such request shall not be counted for purposes
of the registrations to which holders of Registrable Securities are entitled
pursuant to Section 1.
(g) Limitations on Registration on Request. Notwithstanding anything in
this Section 1 to the contrary, the Company shall not be required to effect a
registration pursuant to this Section 1 within the six (6)-month period
occurring immediately subsequent to the effectiveness (within the meaning of
Section 1(d) hereof) of a registration statement filed pursuant to this Section
1.
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2. Incidental Registration.
(a) Incidental Rights. If the Company at any time proposes to register,
on any form which may be used for the registration of Registrable Securities
other than Form S-4 or Form S-8 (or any successor or similar forms then in
effect), any of its securities under the Securities Act (other than pursuant to
Section 1), whether or not pursuant to registration rights granted to other
holders of its securities and whether or not for sale for its own account, in a
manner which would permit registration of Registrable Securities for sale to the
public under the Securities Act, it will give written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section 2; such notice to be given to all such holders at least
twenty (20) days prior to the filing of such proposed registration statement.
Upon the written request of any such holder (a "Requesting Holder") made within
fifteen (15) days after the giving of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such holder and
the intended method or methods of disposition thereof), the Company will use its
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the Requesting Holders, to the extent necessary to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered. With respect to an underwritten offering, prior
to the effective date of any registration statement filed in connection with a
registration described in this Section 2, promptly upon notification to the
Company from the managing underwriter of the price at which the Registrable
Securities requested to be registered pursuant to this Section 2 are to be sold,
the Company shall advise each Requesting Holder of such price, and if such price
is below the price which any Requesting Holder shall have indicated to be
acceptable to such Requesting Holder, such Requesting Holder shall then have the
right to withdraw its request to have its Registrable Securities included in
such registration statement.
(b) Not Deemed a Demand Registration. No registration effected pursuant
to this Section 2 shall be deemed to have been effected pursuant to Section 1.
(c) Holdback. If the Company previously shall have received a request
for registration pursuant to Section 1 or this Section 2, and if such previous
registration shall not have been withdrawn or abandoned, the Company will not
effect any registration of any of its securities under the Securities Act (other
than on Form S-4 or Form S-8 or a successor form), whether or not for sale for
its own account, until a period of ninety (90) days shall have elapsed from the
effective date of such previous registration.
(d) Discontinuance. Notwithstanding anything to the contrary in this
Section 2, the Company shall have the right to discontinue any registration
under
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this Section 2 at any time prior to the effective date of such registration, if
the registration of other securities giving rise to such registration under this
Section 2 is discontinued; but no such discontinuation shall preclude an
immediate or subsequent request for registration pursuant to Section 1 or 2.
3. Registration Procedures. If and whenever the Company is/ required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 1 or Section 2, the Company will
promptly:
(a) prepare and (in any event within ninety (90) days after the end of
the period within which requests for registration may be given to the Company)
file with the Commission the requisite registration statement to effect such
registration and thereafter use its best reasonable efforts promptly to cause
such registration statement to become effective; provided that the Company may
discontinue any registration of its securities which are not Registrable
Securities at any time prior to the effective date of the registration statement
relating thereto;
(b) prepare and file with the Commission such amendments, post-effective
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 Registrable Securities covered by such
registration statement until the earlier of (i) such time as all of such
Registrable Securities have either been disposed of in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or the sale thereof has been abandoned by such sellers
and (ii) ninety (90) days after the effective date of such registration
statement, except with respect to any such registration statement filed pursuant
to Rule 415 (or any successor Rule) under the Securities Act, in which case such
period shall be one year;
(c) furnish as soon as available to each seller of Registrable
Securities covered by such registration statement such number of copies of such
drafts and final versions of such registration statement and of each such
amendment, post- effective amendment and supplement thereto (in each case
including all exhibits), such number of copies of such drafts and final versions
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus), any other prospectus filed
under Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, such documents, if any, incorporated by reference in such
registration statement or prospectus, and such other documents, as such seller
or such holder may reasonably request;
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(d) use its commercially reasonably efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each seller thereof shall
reasonably request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the securities owned by such
seller, 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 clause (d) be obligated to
be so qualified or to consent to general service of process in any such
jurisdiction;
(e) cooperate with the sellers of such Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which securities shall not bear any
restrictive legends indicating that the securities have not been registered
under the Securities Act and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Registrable Securities to be in such
denominations and registered in such names as such sellers may request at least
two (2) business days prior to any sale of Registrable Securities;
(f) furnish to each seller of Registrable Securities upon
request a copy of (i) an opinion of counsel for the Company, dated the effective
date of such registration statement (or, if such registration involves an
underwritten public offering, dated the date of the closing under the
underwriting agreement), covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel in underwritten public
offerings of securities and (ii) a "comfort" letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, with respect to events subsequent to the
date of such financial statements, as are customarily covered in accountants'
comfort letters delivered to the underwriters in underwritten public offerings
of securities and such other financial matters as the Requisite Holders or the
underwriters, as the case may be, may reasonably request, subject to the
delivery by such seller to such independent public accountants of such documents
as are reasonable and customary in transactions of this nature;
(g) promptly notify each seller of such Registrable Securities, and (if
requested by any such seller) confirm such advice in writing, (i) when the
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to the registration statement or any post-effective
amendment, when
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the same has become effective, (ii) of any request by the Commission for
amendments or supplements to the registration statement or the prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(h) promptly notify each seller of Registrable Securities covered by
such registration statement, 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 the light of the
circumstances under which they were made, and at the request of any such seller
or holder promptly prepare and furnish to such seller or holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers or prospective
purchasers of such securities, 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 the
light of the circumstances under which they were made;
(i) use its reasonable commercial efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement at the
earliest possible time;
(j) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen (18) months, beginning with the first full
calendar month after the effective date of such registration statement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(k) furnish to each such seller 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 such seller 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 the rules or
regulations thereunder;
(l) provide and cause to be maintained a transfer agent and a 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;
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(m) cause all Registrable Securities covered by such registration
statement to be listed on each securities exchange or approved for quotation on
any inter-dealer quotation system on which similar securities issued by the
Company are then listed or quoted;
(n) cause its subsidiaries and affiliates to take all action necessary
or advisable to effect the registration of the Registrable Securities
contemplated hereby, including preparing and filing any required financial
information; and
(o) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the applicable registration statement.
The Company may require each holder of Registrable Securities which will be
included in such registration (i) to furnish the Company such information
relating to such holder as the Company may reasonably request and as is required
by applicable laws or regulations, and (ii) to provide the Company with written
confirmation that such holder will comply with applicable securities laws and
regulations, and provide the Company with such further information necessary for
the Company to abide by applicable laws and regulations, in such form as the
Company may reasonably request.
4. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the Initiating
Holders for any underwritten offering of Registrable Securities pursuant to a
registration requested under Section 1, the Company will use its commercially
reasonable efforts to enter into a firm commitment underwriting agreement with
the underwriters for such offering, such agreement to be reasonably satisfactory
in substance and form to the underwriters and to contain such representations
and warranties by the Company and such other terms as are generally prevailing
in such agreements, including, without limitation, indemnities to the effect and
to the extent provided in Section 8. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting agreement
and may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Registrable Securities. Except as set forth in this Agreement,
no holder of Registrable Securities shall be required (i) to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required by law or (ii) to
indemnify (or contribute with respect to an indemnifiable claim) the Company or
any underwriters of the Registrable Securities, except as set forth in Section
8. Notwithstanding the
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foregoing, if the managing underwriter of such underwritten offering shall
advise the Company in writing (with a copy to the holders of Registrable
Securities requesting such registration) that, in its opinion the total number
of shares which the holders of Registrable Securities and, if applicable, any
other holders of securities of the Company or the Company propose to be included
in such registration is sufficiently large to materially and adversely affect
the success of such offering (such writing to state the basis of such opinion
and the approximate number of such securities which may be included in such
offering without such effect), then the amount of securities to be offered for
the accounts of holders of Registrable Securities shall be reduced pro rata (in
accordance with the number of Registrable Securities requested to be included in
such registration) to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter; provided that if securities are being offered for the
account of other Persons as well as the Company, the amount of such securities
shall be reduced prior to any reduction of the amount of securities to be
offered for the accounts of holders of Registrable Securities. Any holder of
Registrable Securities to be included in such registration may withdraw its
request to have its securities so included by notice to the Company promptly
after receipt of a copy of a notice from the managing underwriter pursuant to
this Section 4(a).
(b) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2, whether or not pursuant to registration rights
granted to other holders of its securities and whether or not for sale for its
own account, and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any holder of Registrable
Securities as provided in Section 2 and subject to the provisions of this
Section 4(b), use its best efforts to arrange for such underwriters to include
all the Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters; provided that if the managing
underwriter of such underwritten offering shall advise the Company in writing
(with a copy to the holders of Registrable Securities requesting such
registration) that, in its opinion the total number of shares which the Company,
the holders of Registrable Securities and any other holders of securities of the
Company propose to be included in such registration is sufficiently large to
materially and adversely affect the success of such offering (such writing to
state the basis of such opinion and the approximate number of such securities
which may be included in such offering without such effect), then after
inclusion of the number of securities to be sold by the Company for its own
account in such registration, the amount of securities to be offered for the
accounts of holders of Registrable Securities shall be reduced pro rata (in
accordance with the number of Registrable Securities requested to be included in
such registration) to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter; provided that if securities are being offered for the
account of other Persons as well as the Company,
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such reduction shall not represent a greater fraction of the number of
securities intended to be offered by holders of Registrable Securities than the
fraction of similar reductions imposed on such other Persons over the amount of
securities they intended to offer. Any holder of Registrable Securities to be
included in such registration may withdraw its request to have its securities so
included by notice to the Company promptly after receipt of a copy of a notice
from the managing underwriter pursuant to this Section 4(b). The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters and may,
at their option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such holders
of Registrable Securities. Except as set forth in this Agreement, no holder of
Registrable Securities shall be required (i) to make any representations or
warranties to or agreements with the Company or the underwriters other than
customary representations, warranties or agreements regarding such holder, such
holder's Registrable Securities and such holder's intended method of
distribution and any other representation required by law or (ii) to indemnify
(or contribute with respect to an indemnifiable claim) the Company or any
underwriters of the Registrable Securities, except as set forth in Section 8.
(c) Holdback Agreements. Each holder of Registrable Securities agrees,
if so required by the managing underwriter, not to effect any public sale or
distribution of securities of the Company of the same class as the securities
included in such registration statement, during the seven (7) days prior to the
date on which any underwritten registration has become effective and the ninety
(90) days thereafter, except as part of such underwritten registration or to the
extent that such holder is prohibited by applicable law from agreeing to
withhold Registrable Securities from sale or is acting in its capacity as a
fiduciary or an investment adviser. The Company agrees not to effect any public
sale or distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the seven (7) days
prior to and the ninety (90) days after any underwritten registration pursuant
to Section 1 or 2 has become effective, except as part of such underwritten
registration (other than on Form S-4 or Form S-8 or a successor form).
(d) Selection of Underwriters. If a requested registration pursuant to
Section 1 involves an underwritten offering, the underwriter or underwriters
thereof shall be selected by the Company, which selection shall be subject to
the approval of the Requisite Holders. If an incidental registration pursuant to
Section 2 involves one or more underwriters, the underwriter or underwriters
shall be selected by the Company.
5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities
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under the Securities Act, the Company will give the holders of Registrable
Securities on whose behalf such Registrable Securities are to be so registered,
and their underwriters, if any, and their respective counsel the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
6. Rights of Requesting Holders. If any registration statement refers to
any Requesting Holder by name or otherwise as the holder of any securities of
the Company, such holder shall have the right to require (a) the insertion
therein of language, in form and substance reasonably satisfactory to such
holder, to the effect that, if true, the holding by such holder of such
securities does not necessarily make such holder a "controlling person" of the
Company within the meaning of the Securities Act or (b) in the event that such
reference to such 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 such holder.
7. Registration Expenses. The Company will, whether or not any
registration pursuant to this Agreement shall become effective, pay all
Registration Expenses incident to its performance under or compliance with this
Agreement promptly as such Registration Expenses are incurred.
8. Indemnification and Contribution.
(a) The Company will, and hereby does, indemnify and hold harmless, in
the case of any registration statement filed pursuant to Section 1 or 2, each
seller of any Registrable Securities covered by such registration statement and
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, and their respective
directors, officers, partners, agents and Affiliates, against any losses,
claims, damages or liabilities, joint or several, to which such seller or
underwriter or any such director, officer, partner, agent, Affiliate or
controlling person may become subject under the Securities Act or otherwise,
including, without limitation, the reasonable fees and expenses of legal
counsel, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) 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 such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary
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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 in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such seller or underwriter and each such director, officer, partner,
agent, Affiliate and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided, however, that the
Company shall not be liable in any 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 in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller or
underwriter, as the case may be, specifically stating that it is for use in the
preparation thereof; and provided, further, that the Company shall not be liable
to any Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus and such final prospectus was required to be
delivered to such Person. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, partner, agent, Affiliate or controlling person and shall
survive the transfer of such securities by such seller.
(b) As a condition to including any Registrable Securities in any
registration statement, the Company shall have received an undertaking
satisfactory to it from each prospective seller of such Registrable Securities,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 8(a)) the Company, each other prospective seller, and each
director of the Company, each officer of the Company and each other Person, if
any, who participates as an underwriter in the offering or sale of such
securities and each other Person who controls the Company or any such
underwriter within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus, contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such seller specifically stating that it is for use in the
preparation of such registration statement,
12
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 8(b) shall be limited to the amount of proceeds received by
such indemnifying party in the offering giving rise to such liability. 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 or controlling
person and shall survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 8(a) or (b), 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, however, 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 subdivisions of this
Section 8, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party the indemnifying party shall be entitled to
participate in and, 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, to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be 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. In the event a bona fide conflict of interest between the
indemnified and indemnifying parties exists, the indemnifying party hereunder
shall only be responsible for the payment of reasonable fees and expenses of a
single counsel for the indemnified parties hereunder. No indemnifying party
shall be liable for any settlement of any action or proceeding effected without
its written consent, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the consent of the indemnified party, which
consent shall not be unreasonably withheld, 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 or which
requires action other than the payment of money by the indemnifying party.
(d) Contribution. If the indemnification provided for in this Section 8
shall for any reason be held by a court to be unavailable to an indemnified
party under Section 8(a) or (b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, then, in lieu of the amount paid or
payable under Section 8(a) or (b), the indemnified party and the indemnifying
party under Section 8(a)
13
or (b) shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to reflect the
relative fault of the Company and the prospective sellers of Registrable
Securities covered by the registration statement which resulted in such loss,
claim, damage or liability, or action or proceeding in respect thereof, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action or proceeding in respect thereof, as well as any
other relevant equitable considerations or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as shall
be appropriate to reflect the relative benefits received by the Company and such
prospective sellers from the offering of the securities covered by such
registration statement, provided, that for purposes of clause (i) or (ii), the
relative benefits received by the prospective sellers shall be deemed not to
exceed the amount of proceeds received by such prospective sellers and no holder
of Registrable Securities shall be required to contribute any amount in excess
of the amount such holder would have been required to pay to an indemnified
party if the indemnity under clause (a) of this Section 8 was available. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. As among sellers who
are guilty of such fraudulent misrepresentation, such sellers' obligations to
contribute as provided in this Section 8(d) are several in proportion to the
relative value of their respective Registrable Securities covered by such
registration statement and not joint. In addition, no Person shall be obligated
to contribute hereunder any amounts in payment for any settlement of any action
or claim effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 8 (with appropriate modifications) shall
be given by the Company and each seller of Registrable Securities 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.
(f) An indemnifying party shall make payments of all amounts required to
be made pursuant to the foregoing provisions of this Section 8 to or for the
account of the indemnified party from time to time promptly upon receipt of
bills or invoices relating thereto or when otherwise due or payable; provided
that the indemnified party shall reimburse the indemnifying party for any
payments made with the stated purpose of satisfying the requirements of this
clause (f) which were not required to be made by this Section 8.
9. Registration Rights to Others. The Company hereby represents to the
holders of Registrable Securities that the rights granted herein do not conflict
with the rights, if any, granted to any other holder of securities of the
14
Company. If the Company shall at any time provide to any holder of any
securities of the Company rights with respect to the registration of such
securities under the Securities Act, such rights shall not be in conflict with
any of the rights provided in this Agreement to the holders of Registrable
Securities. The Company shall provide to the holders of Registrable Securities
copies of any agreements which purport to grant rights with respect to the
registration of any of the Company's securities to any holder or prospective
holder thereof promptly upon executing the same.
10. Nominees for Beneficial Owners. For purposes of this Agreement, in
the event that any Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election, be
treated as the holder of such Registrable Securities for purposes of any request
or other action by any holder or holders of Registrable Securities pursuant to
this Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Securities.
11. Rule 144. So long as the Company shall be required to file reports
under the Exchange Act, the Company shall take all actions reasonably necessary
to enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the provisions of
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission,
including, without limitation, filing on a timely basis all reports required to
be filed pursuant to the Exchange Act. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
12. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Affiliate" means any Person controlling, controlled by or under common
control with the Person in question. As used herein, "control" means the
beneficial ownership of at least a majority of the equity interests of a Person
entitling the owner of such interests to direct the policies and operations of
such Person.
"Commission" means the Securities and Exchange Commission and any
successor federal agency having similar powers.
"Common Stock" means the Common Stock, par value $0.1 per share, of the
Company, together with any stock into which such Common Stock shall have
15
been changed or any stock resulting from any reclassification of such Common
Stock, and all other stock of any class or classes (however designated) of the
Company the holders of which have the right, without limitation as to amount,
either to all or to a share of the balance of current dividends and liquidating
dividends after the payment of dividends and distributions on any shares
entitled to preference.
"Company" shall have the meaning assigned such term in the introductory
paragraph of this Agreement and shall include any successor by merger or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holders" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Initiating Holders" means, as of any date of determination, any holder
or holders of Registrable Securities holding individually or in the aggregate
more than 25% of the shares of Registrable Securities then outstanding.
"Person" means an individual, a partnership, a limited liability
company, a joint venture, a corporation, a trust, an association, an
organization, a business, an unincorporated organization or a government or
political subdivision thereof or agency thereof or other entity of any kind.
"Registrable Securities" means any shares of Common Stock (i) issued
upon conversion of shares of Preferred Stock sold by the Company pursuant to the
Securities Purchase Agreement, (ii) issued or issuable upon exercise of the
Warrants, or (iii) issued or issuable with respect to any of the securities
referred to in clauses (i) or (ii) by way of a dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or antidilution protection or otherwise. As to any
particular Registrable Security, such security shall cease to be a Registrable
Security when (x) a registration statement with respect to the sale of such
security shall have become effective under the Securities Act and such security
shall have been disposed of in accordance with such registration statement, (y)
such security shall have been sold as permitted by Rule 144 (or any successor
provision) under the Securities Act or (z) such security, once issued, shall
have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Sections 1 and 2, including, without
limitation, all registration and filing fees, all fees of national securities
exchanges or the National Association of Securities Dealers, Inc., all fees and
expenses of complying with
16
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 "cold comfort" letters required by or incident to such performance
and compliance, any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities (excluding any underwriting discounts or
commissions with respect to the Registrable Securities, which shall not be paid
by the Company) and the reasonable fees and expenses of one counsel to the
selling holders of Registrable Securities (selected by selling holders of
Registrable Securities representing a majority of the Registrable Securities
covered by such registration); provided, however, that in the event the Company
shall, in accordance with Section 2(d), not register any securities with respect
to which it had given written notice of its intention to so register to holders
of Registrable Securities, all of the costs of the type (and subject to any
limitation to the extent) set forth in this definition and incurred by
Requesting Holders in connection with such registration shall be deemed
Registration Expenses.
"Requesting Holders" shall have the meaning assigned to such term in
Section 2 hereof.
"Requisite Holders" means, with respect to any registration of
Registrable Securities by the Company pursuant to this Agreement, any holder or
holders of a majority of the Registrable Securities requested to be registered.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Securities Purchase Agreement" shall have the meaning assigned such
term in the recitals of this Agreement.
"Warrants" shall have the meaning assigned to such term in the
recitals of this Agreement.
13. Miscellaneous.
(a) Remedies. Each holder of Registrable Securities, in addition to the
rights provided herein and at law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by the Company of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
17
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the Registrable
Securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to the terms of this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of holders of a
majority of the Registrable Securities.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, or air courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of this Section 13(d); and
(ii) if to the Company, at Arinco Computer Systems Inc., 0000
Xxxxxxxxxx Xxxxxxxxx, X.X., Xxxxx 0-000, Xxxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: CEO; or at such other address, notice of which is given in
accordance with the provisions of this Section 13(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; and on the
next business day if timely delivered to an air courier guaranteeing overnight
delivery.
(e) Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and, with respect to the
Company, its respective successors and permitted assigns and, with respect to
the Holders, any subsequent holder of any Registrable Securities who agrees in
writing to assume the obligations of a holder of Registrable Securities
hereunder (a copy of which agreement shall be delivered promptly to the
Company), subject to the provisions respecting the minimum numbers of
percentages of shares of Registrable Securities required in order to be entitled
to certain rights, or take certain actions, contained herein. This Agreement may
not be assigned by the Company without the prior written consent of the holders
of a majority of the Registrable Securities at the time such consent is
requested. The Purchasers (and not any other holder of Registrable Securities or
any other Person) shall be permitted, in connection with the transfer or
disposition of Registrable Securities, to impose conditions or constraints on
the ability
18
of the transferee, as a holder of Registrable Securities, to request a
registration pursuant to Section 1 and shall provide the Company with copies of
such conditions or constraints and the identity of such transferees.
(f) Calculation of Percentage Interests in Registrable Securities. For
purposes of this Agreement, all references to a percentage of the Registrable
Securities shall be calculated based upon the number of shares of Registrable
Securities outstanding at the time such calculation is made, assuming, if
applicable, the exercise, conversion or exchange of the Company's securities
into Registrable Securities in accordance with the terms of such securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Certain Distributions. The Company shall not at any time make a
distribution on or with respect to the Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the resulting or surviving corporation and such Registrable
Securities are not changed or exchanged) of securities of another issuer if
holders of Registrable Securities are entitled to receive such securities in
such distribution as holders of Registrable Securities and any of the securities
so distributed are registered under the Securities Act, unless the securities to
be distributed to the holders of Registrable Securities are also registered
under the Securities Act.
19
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, each of the undersigned has executed this
Registration Rights Agreement as of the date first above written.
ARINCO COMPUTER SYSTEMS INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
PANGEA INTERNET ADVISORS LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
21
PURCHASERS:
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
L.A. Bay Investments, LLC
Sun Valley Investments
VBM Equities, LLC
Xxxxx Xxxxxxxx
Xxxxx Capital, LLC
SGII, LLC
Xxxxx X. Xxxxxxx
Turtle Holdings LLC
Grant Xxxxxxx
Xxxxx Xxxxxxx Xx.
Xxxxx Xxxxxxxx
Walnut Associates I, LLC
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
JCK (US), Ltd.
Community Property LLC
Xxxxxx X. Xxxxxxxxxxx
The Matschullat 1996 Children's Trust
Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx Xx.
22
Xxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx, III
The Xxxxxxxx 1991 Children's Trust
Xxxxxxx Xxxxxxxx, Xx.
Pemaxrina Investors, LLC
Westmark Industries, LLC
Riva Capital, LLC
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
TNRT, LLC
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx
B&B Investments
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxx Xxxxxxxx Xxxxxx
Culmen Technology Partners, L.P.
Sterling Payot Capital XX
Xxxxxx X. Xxxxxxxx
Metropolis Venture Partners
Wamtech Investments Inc.
L.I.I., LLC
New River Capital Partners
North Atlantic Smaller Companies
Investment Trust Plc.
American Opportunity Trust
23
Trident North Atlantic Fund
Trident Holdings Limited
Oryx International Growth Fund
Trident Private Equity
XX Xxxxxx Capital Management Ltd A/c B
XX Xxxxxx Capital Management Ltd A/c C
XX Xxxxxx Capital Management Ltd A/c A
Antares Investment Partners
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
PW-Pangea LLC
Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxx Xxxxxx
H. Xxxxxx Xxxx
Gillian Gamsy
Xxxxx Xxxx
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Financial Performance Corporation
24
Xxxxxx Nissan
Xxxx Xxxxx
Xxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxx Xxxxxx
Dolphin II LLC
Xx Xxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
The Xxxxxxx Family Revocable Trust U/D/T dated
December 15, 1997, Xxxxx X. Xxxxxxx and Xxxx
X. Xxxxxxx, Trustees
IPO Partners
Xxxxxxx' Children Irrevocable Trust U/D/T dated
October 21, 1996, Xxxxxxx X. Xxxxxxx, Trustee
Xxxxxxxx Xxxxx
Xxxxx Xxxxx
Xxx Xxxxx
Xxxxx X. Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
Caran Establishment
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxx
XX XX Seed Fund LLC
25
Lixuan An
Xxxxx Xxxxxxxx, III Trust
Alis & Co.
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
St. Croix Investments, LLC
Xxxxxx Xxxxx
By: PANGEA INTERNET ADVISORS LLC
Attorney-in-Fact
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
26
