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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the
20th day of August, 1998, by and among XXXXXX XXXXX & ASSOCIATES, INC., a
California corporation ("SM&A"), and Xxx X. Xxxxxxxx individually and as
attorney for all other shareholders of Decision-Science Applications, Inc., a
Virginia corporation, listed on Schedule 1.0 attached hereto (collectively, the
"DSA Shareholders").
R E C I T A L S:
A. SM&A, Decision-Science Applications, Inc. ("DSA") and DSA
Acquisition, Inc. ("Subsidiary"), a wholly owned subsidiary of SM&A, Xxx X.
Xxxxxxxx and Xxxx X. Xxxxx, entered into that certain Agreement and Plan of
Reorganization and Merger dated July 22, 1998 (the "Merger Agreement") pursuant
to which DSA will merge with and into Subsidiary (the "Merger"). Pursuant to the
Merger, SM&A will issue shares of Common Stock of SM&A (the "SM&A Stock") to the
DSA Shareholders.
B. SM&A and the DSA Shareholders desire to set forth in a single
agreement the registration rights to be granted to the DSA Shareholders, and the
covenants to be made in connection therewith, with respect to the shares of SM&A
Stock issued to the DSA Shareholders pursuant to the Merger.
NOW, THEREFORE, for good and valuable consideration, the DSA
Shareholders and SM&A agree as follows:
1. Definitions.
For purposes of this Agreement:
(a) The term "register," "registered," and "registration" refer to a
registration of the Registrable Securities effected by preparing and filing a
registration statement with the Securities and Exchange Commission (the "SEC")
in compliance with the Securities Act of 1933, as amended (the "Act"), and the
declaration or ordering of effectiveness by the SEC of such registration
statement;
(b) The term "Registrable Securities" means (i) shares of SM&A Stock
issued to the DSA Shareholders in the Merger, and (ii) any SM&A Stock issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution (including a stock
split, stock dividend, recapitalization or similar event) with respect to, or in
exchange for or in replacement of, SM&A Stock referred to in (i) above,
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which his rights under this Agreement are not assigned;
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(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of SM&A Stock outstanding which are
Registrable Securities, and the number of shares of SM&A Stock issuable pursuant
to then exercisable or convertible securities which would be Registrable
Securities upon issuance;
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 12 hereof; and
(e) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by SM&A with the SEC.
2. Request for Registration.
(a) If SM&A shall receive at any time after February 1, 1999 a written
request from the Holders of at least thirty-five percent (35%) of the
Registrable Securities then outstanding that SM&A file a registration statement
on Form S-3 under the Act covering the registration of at least thirty-five
percent (35%) of the Registrable Securities then outstanding (or without regard
to percent if the aggregate offering price would exceed $2,000,000), then SM&A
shall, within ten (10) days of the receipt thereof, give written notice of such
request to all Holders and shall, subject to the limitations of Section 2(b),
use its best efforts to effect, at the earliest possible date, but in any event
within forty-five (45) days of the date of the original written request from the
Holders, file with the SEC a registration statement on Form S-3 covering all
Registrable Securities which the Holders thereof request to be registered, which
such requests have been received by SM&A within twenty (20) days of the mailing
of such notice to the Holders by SM&A in accordance with Section 18 below.
(b) If the Holders initiating the registration request under this
Section 2 ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriter, the Initiating Holders
shall so advise SM&A as a part of their request made pursuant to this Section 2
and SM&A shall include such information in the written notice referred to in
Section 2(a). The underwriter with respect to such Form S-3 registration will be
selected by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to SM&A. The right of any Holder to include his
Registrable Securities in the underwritten offering shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwritten offering shall (together with
SM&A as provided in Section 4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting in the manner set forth above, it being understood that each Holder
shall be required to make only those representations (if any) as would be
customary for a holder of a similar percentage of similar securities.
Notwithstanding any other provision of this Section 2, if the managing
underwriter
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advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise be included in the underwritten offering pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
underwritten offering shall be allocated equally among all Holders thereof,
including the Initiating Holders, on a percentage basis (as nearly as
practicable) equal to the percentage of SM&A Stock requesting registration and
permitted by such underwriters to be sold by SM&A shareholders. To the extent
Registrable Securities requested to be registered are excluded from the offering
pursuant to the immediately preceding sentence, the Holders of such Registrable
Securities shall have the right to one additional demand registration pursuant
to this Section 2.
SM&A may include in the registration under this Section 2(b) any other
shares of SM&A Stock (including issued and outstanding shares of SM&A Stock as
to which the holders thereof have contracted with SM&A for "piggyback"
registration rights) so long as the inclusion in such registration of such
shares (i) will not, in the opinion of the managing underwriter, interfere with
the successful marketing in accordance with the intended method of sale or other
disposition of all the shares of Registrable Securities sought to be registered
by the Holder or Holders of Registrable Securities pursuant to this Section 2
and (ii) will not result in the exclusion from such registration of any
Registrable Securities. If it is determined as provided above that there will be
such interference, the other shares of SM&A Stock sought to be included shall be
excluded to the extent deemed appropriate by the managing underwriter.
(c) SM&A is obligated to effect only two (2) registrations pursuant to
this Section 2 except as provided in Section 2(b).
(d) Notwithstanding the foregoing, if SM&A shall furnish to Holders
requesting a registration statement pursuant to this Section 2 a certificate
signed by the President of SM&A stating that in the good faith judgment of the
Board of Directors of SM&A, it would be seriously detrimental to SM&A and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, SM&A shall have
the right to defer taking action with respect to such filing for a period of not
more than ninety (90) days after receipt of the request of the Initiating
Holders; provided, however, that SM&A may not utilize this right more than once
in any twelve (12) month period. The certificate provided by SM&A shall briefly
explain the reasoning of the Board of Directors in making such determination.
(e) SM&A shall not be required to prepare and file a registration
statement pursuant to this Section 2 which would become effective within one
hundred eighty (180) days following the effective date of a registration
statement filed by SM&A with the SEC pertaining to an underwritten public
offering of securities for cash for the account of SM&A if the Initiating
Holders' request for registration is received by SM&A subsequent to such time as
SM&A in good faith gives written notice to the holders of Registrable Stock that
(i) SM&A is commencing to prepare a registration statement, (ii) SM&A is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective, and (iii) that the underwriters of
the offering made pursuant to such registration statement reasonably object to
the registration of the Registrable Securities.
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A registration requested pursuant to this Section 2 shall not be deemed
to have been effected until such time as a registration statement with respect
thereto has become effective in compliance with the provisions of the Act.
3. SM&A Registration.
If (but without any obligation to do so) SM&A proposes to register
(including for this purpose a demand registration effected by SM&A any of its
common stock under the Act in connection with the public offering of such common
stock solely for cash (other than a registration relating solely to the sale of
securities on Form X-0, Xxxx X-0 or any successor form thereto), then SM&A
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by SM&A in accordance with Section 18, SM&A
shall, subject to the provisions of Section 8, cause to be registered under the
Act all of the Registrable Securities that each such Holder has requested to be
registered subject to the terms, conditions and contractual obligations of such
underwritten offering. SM&A reserves the right to withdraw any proposed
registration in which Holders have requested to participate pursuant to this
Section 3.
4. Obligations of SM&A.
Whenever required under this Agreement to effect the registration of any
Registrable Securities, SM&A shall, as soon as reasonably practicable:
(a) prepare and (using its best efforts to do so, but in any event
within forty-five (45) days of the date of a written request) file with the SEC
a registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective, and, upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to one
(1) year;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep such registration statement
effective and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the SM&A Stock covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that SM&A shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions and use its best efforts to cause
all Registrable
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Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to SM&A and counsel to the Holder or
Holders of Registrable Securities to enable the Holder or Holders thereof to
consummate the disposition of such Registrable Securities;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the underwriters of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement;
(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or 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 a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any such Holder promptly prepare and furnish to it 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 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 light of the circumstances under which they
were made;
(g) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing SM&A for the purposes of such registration, in form and substance
as is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of SM&A, in form and substance as
is customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities;
(h) use its best efforts (a) to list all Registrable Securities covered
by such registration statement on such national securities exchange on which
Registrable Securities of the same class and, if applicable, series covered by
such registration statement are then listed, if any, or on the National
Association of Securities Dealers Automated Quotation System, Inc. ("NASDAQ") if
the Registrable Securities are quoted on NASDAQ; and
(i) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its securities holders, as
soon as reasonably practicable and if required by law, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
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date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, and
promptly furnish to each such Holder of Registrable Securities a copy of any
amendment or supplement to such registration statement or prospectus.
5. Furnish Information.
It shall be a condition precedent to the obligations of SM&A to take any
action pursuant to this Agreement with respect to the Registrable Securities of
any Holder that such Holder requesting registration shall furnish to SM&A such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of such Holder's Registrable Securities.
6. Expenses of Demand Registration.
All expenses other than underwriting discounts and commissions incurred
in connection with registrations, filings or qualifications pursuant to Section
2, including, without limitation, all registration, filing and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for SM&A,
and the reasonable fees and disbursements of one counsel for the selling Holders
(as selected by a majority in interest of the selling Holders) shall be borne by
SM&A; provided, however, that SM&A shall not be required to pay for any expenses
of any registration proceeding begun pursuant to Section 2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all Holders
participating in such registration shall bear such expenses), unless the Holders
of a majority of the Registrable Securities agree to forfeit one of their demand
registration rights provided under Section 2. Notwithstanding the foregoing,
however, if at the time of the withdrawal, the Holders of the Registrable
Securities have learned of a material adverse change in the condition, business
or prospects of SM&A from that known to the Holders of the Registrable
Securities at the time of their request, of which SM&A had knowledge at the time
of the request, the Holders of such Registrable Securities shall not be required
to pay any of said expenses or to forfeit the right to one demand registration.
7. Expenses of SM&A Registration.
SM&A shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 3 for each Holder (which right may be
assigned as provided in Section 12), including, without limitation, all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the selling Holders selected by a majority in interest of the
selling Holders, but excluding underwriting discounts and commissions relating
to Registrable Securities.
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8. Underwriting Requirements.
In connection with any underwritten offering of SM&A Stock, SM&A shall
not be required under Section 3 to include any of the Holders' Registrable
Securities in such underwritten offering unless the Holders accept the terms of
the transaction as agreed upon between SM&A and the underwriters selected by it
(or by other persons entitled to select the underwriters) (provided, however,
that each Holder shall be required to make only those representations (if any)
as would be customary for a holder of a similar percentage of similar
securities), and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by SM&A.
If the total amount of securities, including Registrable Securities, requested
to be included in such offering exceeds the amount of securities sold other than
by SM&A that the underwriters determine in their sole discretion is compatible
with the success of the offering, then SM&A shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (provided such participation is, on a percentage
basis, equal to the proportion of SM&A Stock held by SM&A shareholders which is
included in such underwriting to that which such SM&A shareholders requested to
be included in such underwriting).
9. Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification.
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, SM&A will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), and their respective directors, officers, partners, shareholders,
employees, agents, representatives and affiliates, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the 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 (iii) any violation or alleged
violation by SM&A of the
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Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law; and SM&A
will pay to each such Holder, underwriter or controlling person, and his
respective directors, officers, partners, shareholders, employees, agents,
representatives and affiliates, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 10(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of SM&A (which consent shall not be
unreasonably withheld), nor shall SM&A be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless SM&A, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls SM&A within
the meaning of the Act, any underwriter, any other Holder selling securities in
such registration statement and any controlling person of any such underwriter
or other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this Section 10(b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld. In no event shall any indemnity under this Section
10(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action (including any governmental action)
for which indemnification may be requested, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding or if the indemnifying party
shall fail to assume
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responsibility for such defense. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if actually prejudicial to the indemnifying party's ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 10. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
a 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) If the indemnification provided for in this Section 10 shall for any
reason be held by a court of competent jurisdiction to be unavailable to an
indemnified party under subparagraph (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 subparagraph (a) or (b) hereof, the indemnified
party and the indemnifying party under subparagraph (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating and
defending the same), (i) in such proportion as is appropriate to reflect the
relative fault of SM&A and the Holders of Registrable Securities covered by the
registration statement in connection with the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations (the relative fault of
SM&A and such Holders to be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by SM&A or such Holders and the parties' relative intent, knowledge
access to information and opportunity to correct or prevent such statement or
omission) 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 SM&A and such Holders from the
offering of the securities covered by such registration statement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Such Holders' obligations to contribute as
provided in this subparagraph (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 or delayed.
(e) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 10 (with appropriate modifications) shall
be given by SM&A and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under any federal or
state law, rule or regulation of any governmental authority other than the Act.
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(f) The indemnification and contribution required by this Section 10
shall be made by prompt periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(g) The obligations of SM&A and Holders under this Section 10 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
11. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of SM&A to the public without
registration or pursuant to a registration on Form S-3, SM&A agrees to:
(a) make and keep adequate public information available, as those terms
are understood and defined in Rule 144 under the Act ("Rule 144"), at all times;
(b) take such action as is necessary to enable SM&A to utilize Form S-3
to register the Holders' Registrable Securities, such action to be taken as soon
as ordinarily required after the end of the fiscal year in which the first
registration statement filed by SM&A for the offering of its Common Stock to the
general public is declared effective;
(c) file with the SEC in a timely manner all reports and other documents
required of SM&A under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by SM&A that it has
complied with the reporting requirements of Rule 144, the Act and the 1934 Act,
or that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of SM&A and such other reports and documents so filed
by SM&A, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
12. Assignment of Registration Rights.
The rights to cause SM&A to register Registrable Securities pursuant to
this Agreement may be transferred or assigned (but only with all related
obligations) by a Holder, provided SM&A is, within a reasonable time after such
transfer or assignment, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned or transferred; and provided, further,
that such
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assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
13. Amendment of Registration Rights.
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of SM&A and the
holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and SM&A.
14. Termination of Registration Rights.
No Holder shall be entitled to exercise any right provided for in this
Agreement after such time as the Holder would be able to dispose of all its
Registrable Securities pursuant to Rule 144.
15. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of California as applied to agreements among California residents entered
into and to be performed entirely within California without giving effect to
conflict of laws principles.
16. Entire Agreement.
This Agreement represents the entire agreement between and among the DSA
Shareholders and SM&A with respect to the subject matter hereof and supersedes
any prior oral or written agreements concerning the same.
17. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notices.
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified upon delivery by overnight express
courier, or upon deposit with the United States Post
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Office, by registered or certified mail, postage prepaid and addressed to the
party to be notified at the address indicated for such party on the signature
page hereof, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties.
19. Successors and Assigns.
Subject to the limitations set forth in Section 12 hereof, this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
SM&A: XXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Its: Chief Operating Officer
Address:
0000 XxxXxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
DSA SHAREHOLDERS: /s/ XXX X. XXXXXXXX
-----------------------------------
Xxx X. Xxxxxxxx, as attorney-in-
fact for the Shareholders identified
on Schedule 1.0 hereto
Address:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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