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REGISTRATION RIGHTS AGREEMENT
among
OPUS360 CORPORATION
and
PROHA PLC
_____________________________
Dated as of
July 31, 2001
_____________________________
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS..................................................................1
Section 1.1. Definitions.................................................1
ARTICLE II
REGISTRATION RIGHTS..........................................................3
Section 2.1. Shelf Registration..........................................3
Section 2.2. Demand Registration.........................................3
Section 2.3. Piggy-Back Registration.....................................5
Section 2.4. Reduction of Offering.......................................5
ARTICLE III
REGISTRATION PROCEDURES......................................................7
Section 3.1. Filings; Information........................................7
Section 3.2. Registration Expenses......................................11
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION............................................12
Section 4.1. Indemnification by the Company.............................12
Section 4.2. Indemnification by Holders of Registrable Securities.......13
Section 4.3. Conduct of Indemnification Proceedings.....................13
Section 4.4. Contribution...............................................14
ARTICLE V
MISCELLANEOUS...............................................................15
Section 5.1. Participation in Underwritten Registrations................15
Section 5.2. Distribution...............................................16
Section 5.3. SEC Reporting..............................................16
Section 5.4. Restrictions on Sale.......................................16
Section 5.5. Notices....................................................17
Section 5.6. Governing Law..............................................18
Section 5.7. Entire Agreement...........................................18
Section 5.8. Modifications and Amendments...............................19
Section 5.9. Waivers and Extensions.....................................19
Section 5.10. Titles and Headings........................................19
Section 5.11. Assignment.................................................19
Section 5.12. Severability...............................................19
Section 5.13. Counterparts...............................................19
Section 5.14. Further Assurances.........................................20
(i)
Section 5.15. Remedies Cumulative; Specific Performance..................20
Section 5.16. Other Registration Rights..................................20
(ii)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
July 31, 2001, by and among Opus360 Corporation, a Delaware corporation (the
"Company"), and Proha Plc, a Finnish corporation ("Proha"). Capitalized terms
not defined herein shall have their respective meanings as set forth in the
Share Exchange Agreement described below.
W I T N E S S E T H
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WHEREAS, the Company and Proha entered into a Share Exchange
Agreement, dated as of April 11, 2001, as amended by the First Amendment to the
Share Exchange Agreement, dated as of July 10, 2001 (the "Share Exchange
Agreement"), pursuant to which the Company agreed to purchase from Proha the
Exchanged Shares in exchange for the issuance by the Company of a number of
shares of its Common Stock, par value $.001 per share (the "Common Stock"), to
Proha, representing 80% of the issued and outstanding shares of Common Stock on
a Fully-Diluted Basis on the First Closing Date; and
WHEREAS, as a condition to the consummation of the transactions
contemplated to occur on the First Closing Date, the Company agreed to enter
into this Agreement for the benefit of Proha and its transferees.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Agreement" shall have the meaning set forth in the Preamble.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall meaning set forth in the Recitals.
"Company" shall have the meaning set forth in the Preamble.
"Controlling Person" shall have the meaning set forth in Section 4.1.
"Damages" shall have the meaning set forth in Section 4.1.
"Demanding Holder" shall have the meaning set forth in Section 2.2.
"Demand Notice" shall have the meaning set forth in Section 2.2.
"Demand Registration" shall have the meaning set forth in Section 2.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean (i) Proha, as the beneficial owner of Registrable
Securities and (ii) any other Person (a) that is the beneficial owner of
Registrable Securities and (b) to whom the registration rights set forth herein
have been assigned in accordance with Section 5.11; provided, that a Person
shall be deemed the beneficial owner of Registrable Securities if that Person
has the right to acquire such Registrable Securities, whether or not such
acquisition has been effected and disregarding any legal restrictions upon the
exercise of such right.
"Indemnified Party" shall have the meaning set forth in Section 4.2.
"Indemnifying Party" shall have the meaning set forth in Section 4.2.
"Initiating Holders" shall have the meaning set forth in Section 2.2.
"Inspectors" shall have the meaning set forth in Section 3.1(i).
"Minimum Effective Period" shall mean (i) in the case of the Shelf
Registration, as long as Holders hold any of the Registrable Securities, and
(ii) in the case of a Demand Registration, a period of at least one hundred
eighty (180) days beyond the effective date thereof (or, in either case, such
shorter period as is required to complete the distribution of the Registrable
Securities included in such registration statement).
"NASD" shall have the meaning set forth in Section 3.1.
"Notices" shall have the meaning set forth in Section 5.5.
"Piggy-Back Registration" shall have the meaning set forth in Section
2.3.
"Piggy-Back Holders" shall have the meaning set forth in Section 2.3.
"Proha" shall have the meaning set forth in the Preamble.
"Records" shall have the meaning set forth in Section 3.1(i).
"Registration Expenses" shall have the meaning set forth in Section
3.2.
"Registrable Securities" shall mean (i) shares of Common Stock issued
and sold by the Company to Proha pursuant to the Share Exchange Agreement, (ii)
shares of Common Stock acquired by Proha after the date hereof (provided that
such shares were not previously registered under the Securities Act), (iii) any
security received or receivable as a dividend or other distri-
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bution with respect to any Registrable Securities, (iv) any security received in
exchange for or in replacement of any Registrable Securities, (v) any security
issued or issuable with respect to any Registrable Securities as a result of a
change or reclassification of Registrable Securities or any capital
reorganization of the Company, and (vi) any security received or receivable by a
holder in respect of Registrable Securities as a result of a merger or
consolidation of the Company; provided, however, that "Registrable Securities"
shall not include (a) any securities sold to the public pursuant to a
registration statement or Rule 144 under the Securities Act or any similar rule
promulgated by the Commission thereunder, or (b) any securities sold in a
private transaction in which the transferor's rights hereunder are not assigned
in accordance with the requirements of Section 5.11.
"register," "registered" and "registration" shall refer to a
registration of securities effected by preparing and filing a registration
statement in compliance with the Securities Act and the effectiveness of such
registration statement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who sells or proposes to sell
Registrable Securities pursuant to any registration statement provided for in
this Agreement.
"Share Exchange Agreement" shall meaning set forth in the Recitals.
"Shares" shall mean shares of Common Stock.
"Shelf Registration" shall have the meaning set forth in Section 2.1.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1. Shelf Registration. Within forty-five (45) days of
delivery of a written notice by the Holders of a majority of the Registrable
Securities then outstanding, which notice may be delivered at the Closing, the
Company shall prepare and file a shelf registration statement (the "Shelf
Registration") on Form S-3 if eligible, or such other form as the Company may at
the time be eligible to use for the registration of securities under the
Securities Act providing for the re-sale by the Holders of all of their
Registrable Securities on a delayed or continuous basis. The Company may include
in the Shelf Registration shares of Common Stock sold for the account of the
Company, but no other Person.
Section 2.2. Demand Registration.
(a) Request for Registration. At any time, and from time to time, a
majority of the Holders of Registrable Securities then outstanding shall have
the right, by written notice (a "Demand Notice") delivered to the Company, to
require the Company to register ("Demand Registration") Registrable Securities.
The Holders who deliver a Demand Notice (the "Initiating
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Holders") shall specify in the Demand Notice the number and type, class or
series of Registrable Securities to be registered and the intended methods of
disposition thereof.
The Company shall give written notice of any Demand Notice within ten
(10) days after the receipt thereof, to each Holder other than the Initiating
Holders. Within twenty (20) days after receipt of such notice, any such Holder
may request in writing that its Registrable Securities be included in such
registration, and the Company shall include in the Demand Registration the
Registrable Securities of all such Holders who request to be so included
(together with the Initiating Holders, the "Demanding Holders"), subject to the
provisions of Section 2.4. Each such request shall specify the number of
Registrable Securities proposed to be sold and the intended method of
disposition thereof.
(b) Effective Registration. A registration will be deemed to have been
effected as a Demand Registration if it has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that a Demand
Registration will not be deemed to have been effected, and the Company shall
continue to be obligated to effect an additional Demand Registration, if (i)
after such registration has become effective, the offering of Registrable
Securities pursuant to such registration is or becomes the subject of any stop
order, injunction or other order or requirement of the Commission or any other
governmental or administrative agency (for any reason other than the acts or
omissions of the Demanding Holders), (ii) any court prevents or otherwise limits
the sale of Registrable Securities pursuant to such registration (for any reason
other than the acts or omissions of the Demanding Holders), (iii) such
registration does not remain effective for the Minimum Effective Period, (iv) an
event specified in clause (iv), (v) or (vi) of Section 3.1(d) occurs that
results in a delay of an underwritten offering and, as a result of such delay,
the managing underwriter(s) determine that the Registrable Securities cannot be
sold at the originally anticipated offering price, or (v) after an event
specified in clause (vi) of Section 3.1(d) occurs, the Selling Holders determine
to withdraw a majority of the Registrable Securities previously included in such
registration.
(c) Withdrawal. The Demanding Holders may withdraw all or any part of
their Registrable Securities from a Demand Registration at any time (whether
before or after the filing or effective date of such Demand Registration) and,
if all such Registrable Securities are withdrawn, may withdraw the demand
related thereto. If a registration statement is filed pursuant to a Demand
Registration, and subsequently a sufficient number of Registrable Securities are
withdrawn from the Demand Registration so that such registration statement does
not cover at least the required amount specified by Section 2.2(a), the Company
may (or shall, if requested by the Demanding Holders) withdraw the registration
statement.
(d) Selection of Underwriter. If the Demanding Holders so elect, the
offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of an underwritten offering. The Demanding Holders shall select one or
more nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection with such
offering and shall select any additional investment bankers and managers to
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be used in connection with the offering; provided, that such investment bankers
and managers must be reasonably satisfactory to the Company.
Section 2.3. Piggy-Back Registration. If the Company proposes to file
a registration statement (a "Piggy-Back Registration") under the Securities Act
with respect to an offering or other sale of equity securities by the Company
for its own account or for the account of any holders of any class of its equity
securities (other than (i) a Demand Registration, (ii) a registration statement
on Form S-4 or S-8 (or any substitute form that may be adopted by the
Commission), or (iii) a registration statement filed in connection with an
exchange offer or offering of securities solely to the Company's existing
securityholders), then the Company shall give written notice of such proposed
filing to the Holders as soon as practicable, in any event at least thirty (30)
days before the anticipated filing date, and such notice shall offer each Holder
the opportunity to include in such registration such number of Registrable
Securities as such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof). Such Holders shall have twenty (20)
days after receipt of such notice from the Company to make such request. All
Holders requesting inclusion in the Piggy-Back Registration are referred to
herein as "Piggy-Back Holders".
Any Holder shall have the right to withdraw its request for inclusion
of its Registrable Securities in any Piggy-Back Registration by giving written
notice to the Company of its request to withdraw prior to the date on which the
registration statement becomes effective. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective, provided, that
the Company shall reimburse the Piggy-Back Holders for all reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred prior to
such withdrawal.
No Piggy-Back Registration shall relieve the Company of its obligation
to effect any Demand Registration or a Shelf Registration, and no failure to
effect a Piggy-Back Registration or complete the sale of securities in
connection therewith shall relieve the Company of any other obligation under
this Agreement (including, without limitation, the Company's obligations under
Sections 3.2 and 4.1).
Section 2.4. Reduction of Offering.
(a) Demand Registration. The Company may include in a Demand
Registration Registrable Securities for the account of the Demanding Holders and
shares of Common Stock for the account of the Company or other stockholders
exercising contractual piggy-back registration rights, on the same terms and
conditions as the Registrable Securities are included therein for the account of
the Demanding Holders; provided, however, that (i) if the managing
underwriter(s) of any underwritten offering that is the subject of such Demand
Registration have informed the Company in writing that in their opinion the
total number of securities that the Demanding Holders, the Company and any other
stockholders intend to include in such offering exceeds the number which can be
sold in such offering within a price range acceptable to the Holders of a
majority of the Registrable Securities requested to be included therein, then
(x) the number of Shares to be offered for the account of any stockholders other
than the Demanding Holders shall be reduced (to zero, if necessary) pro rata in
proportion to the
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respective number of Shares requested to be registered by such stockholders, and
(y) thereafter, if necessary, the number of Shares to be offered for the account
of the Company shall be reduced (to zero, if necessary), to the extent necessary
to reduce the total number of Shares requested to be included in such offering
to the number of Shares, if any, recommended by such managing underwriter(s)
(and if the number of Shares to be offered for the account of stockholders other
than the Demanding Holders and for the account of the Company has been reduced
to zero, and the number of Shares requested to be included in such offering by
the Demanding Holders exceeds the number of Shares recommended by such managing
underwriter(s), then the number of Shares to be offered for the account of the
Demanding Holders shall be reduced pro rata in proportion to the respective
number of Shares requested to be registered by the Demanding Holders) and (ii)
if the offering that is the subject of such Demand Registration is not
underwritten, only Demanding Holders, and no other party (including the
Company), shall be permitted to include securities in such Demand Registration
unless the Demanding Holders owning a majority of the Shares included in such
Demand Registration consent in writing to the inclusion of such securities
therein.
(b) Piggy-Back Registration.
Notwithstanding anything to the contrary contained herein, if the
managing underwriter(s) of any underwritten offering that is the subject of a
Piggy-Back Registration have informed the Company in writing that in their
written opinion the total number of Shares that the Company, the Piggy-Back
Holders and any other Persons desiring to participate in such registration
intend to include in such offering exceeds the number which can be sold in such
offering without materially and adversely affecting the marketability of the
offering, then (w) the number of Shares to be offered for the account of all
other Persons (other than the Company, the Piggy-Back Holders and any
securityholder(s) for whom such registration constitutes an exercise of their
demand registration rights) exercising piggy-back registration rights pursuant
to a written agreement between such securityholder(s) and the Company that have
requested to include Shares in such registration shall be reduced (to zero, if
necessary) pro rata in proportion to the respective number of Shares requested
to be included, (x) thereafter, if necessary, the number of Shares to be offered
for the account of the Company (if any) shall be reduced (to zero, if necessary)
if such registration was not initiated by the Company for its own account, (y)
thereafter, if necessary, the number of Shares to be offered for the account of
Piggy-Back Holders and any securityholder(s) exercising demand registrative
rights pursuant to a written agreement between such securityholder(s) shall be
reduced (to zero, if necessary) pro rata in proportion to the respective number
of Shares requested to be included, and (z) thereafter, if necessary, the number
of Shares to be offered for the account of the Company shall be reduced if such
registration was initiated by the Company for its own account, to the extent
necessary to reduce the total number of Shares requested to be included in such
offering to the number of Shares, if any, that such managing underwriter(s)
believe can be included without materially and adversely affecting the success
of the offering provided that, if such registration contemplates an
"over-allotment option" on the part of underwriters, to the extent such
over-allotment option is exercised and the Holders of the Registrable Securities
were excluded from registering any of the Registrable Securities they requested
be included in such registration pursuant to the cutback provisions of this
Section 2.4(b), then the over-allotment option shall be fulfilled through the
registration and sale of such excluded Registrable Securities.
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ARTICLE III
REGISTRATION PROCEDURES
Section 3.1. Filings; Information. Whenever the Company is required to
effect or cause the registration of Registrable Securities pursuant to this
Agreement, the Company will use its commercially reasonable efforts to effect
the registration of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in connection with
any such request:
(a) The Company will as expeditiously as possible prepare and file
with the Commission a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its commercially reasonable efforts to cause such filed
registration statement to become and remain effective for the Minimum Effective
Period; provided, however, that the Company may postpone the filing of a
registration statement, or suspend sales under an effective shelf registration
statement, for a period of not more than thirty (30) days if the Company
furnishes to each Selling Holder a certificate signed by the Chairman of the
Board stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for the Company to file a registration statement, or permit sales to be made
under an effective shelf registration statement, at such time because (i) it
would interfere with any proposed or pending material transaction or (ii) the
Company would be required to disclose material non-public information that the
Company has a bona fide business purpose for not disclosing; provided, further,
that the Company shall only be entitled to postpone a filing or suspend sales
once in any twelve-month period. If the Company postpones the filing of a
registration statement, or suspends sales under an effective shelf registration
statement, it shall promptly notify the Holders in writing when the events or
circumstances permitting such postponement or suspension have ended. In the
event of any suspension of sales under any registration statement pursuant to
this Section 3.1(a), the Company shall extend the period during which such
registration statement shall be maintained effective by the number of days in
such suspension period.
(b) The Company will promptly prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement continuously effective (subject to paragraph (a) and the
penultimate paragraph of this Section 3.1) for the Minimum Effective Period and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by each Selling Holder
included in such registration statement; provided, that the Company shall be
deemed not to have used its commercially reasonable efforts to keep a
registration statement effective during the applicable period if it voluntarily
takes any action that results in the Selling Holders of the Registrable
Securities covered thereby not being able to sell such Registrable Securities
during that period.
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(c) The Company will, at least fifteen (15) days prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
furnish to each Selling Holder, counsel representing such Selling Holders, and
each underwriter, if any, of the Registrable Securities covered by such
registration statement copies of such registration statement as proposed to be
filed, together with exhibits thereto, which documents will be subject to review
and comment by the foregoing as promptly as practicable, but in any event within
ten (10) days after delivery, and thereafter furnish to such Selling Holder, its
counsel and the underwriters, if any, for their review and comment such number
of copies of such registration statement, each amendment and supplement thereto
(in each case, including all exhibits thereto and documents incorporated by
reference therein), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents or information
as such Selling Holder, counsel or underwriter may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by such
Selling Holder.
(d) After the filing of the registration statement, the Company will
promptly notify each Selling Holder of Registrable Securities covered by such
registration statement, and confirm such notice in writing, (i) when a
prospectus or any prospectus supplement or post- effective amendment has been
filed and, with respect to a registration statement or any post- effective
amendment, when the same has become effective, (ii) of any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to a registration statement or related prospectus or for
additional information, (iii) of the issuance by the Commission or any other
Federal or state governmental authority of any stop order suspending the
effectiveness of a registration statement or any order preventing or suspending
the use of any prospectus or the initiation of any proceedings for that purpose,
(iv) if, at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities, the
representations and warranties of the Company contained in any agreement
contemplated by Section 3.1(h) (including any underwriting agreement) cease to
be true and correct in any respect, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (vi) of the happening of any event which makes any statement made
in such registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in a registration
statement, prospectus or documents incorporated therein by reference so that, in
the case of the registration statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that, in
the case of the prospectus, it will not contain any untrue statement of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. After the filing of the registration statement, the Company will
promptly furnish to each Selling Holder and the managing underwriter, without
charge, at least one signed copy of the registration statement.
(e) The Company will use its commercially reasonable efforts to (i)
register or qualify the Registrable Securities under such other securities or
blue sky laws of such jurisdictions in the United States as any Selling Holder,
the managing underwriters, if any, or their respective counsel reasonably (in
light of such Selling Holder's intended plan of distribution) request, and (ii)
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cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities in the United States as may be
necessary by virtue of the business and operations of the Company and do any and
all other acts and things that may be reasonably necessary or advisable to
enable such Selling Holder to consummate the disposition of the Registrable
Securities owned by such Selling Holder; provided that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e) or (B)
consent to general service of process in any such jurisdiction.
(f) The Company will promptly use its commercially reasonable efforts
to prevent the entry, or obtain the withdrawal, of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any Registrable
Securities for sale in any jurisdiction.
(g) Upon the occurrence of any event contemplated by clause (vi) of
Section 3.1(d), the Company will (i) promptly prepare a supplement or
post-effective amendment to such registration statement or a supplement to the
related prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such prospectus will not
contain 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, in
light of the circumstances under which they were made, not misleading, and (ii)
promptly make available to each Selling Holder any such supplement or amendment.
(h) The Company will enter into customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities. All of the representations,
warranties and covenants of the Company to or for the benefit of such
underwriters shall also be made to and for the benefit of such Selling Holders.
None of such agreements shall increase the potential liability of the Selling
Holders beyond that otherwise provided in Article IV of this Agreement.
(i) The Company will make available to each Selling Holder (and will
deliver to their counsel) and each underwriter, if any, copies of all
correspondence between the Commission and the Company, its counsel or auditors
and will also make available for inspection by any Selling Holder, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by any
such Selling Holder or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records which the
Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the disclosure or release of
such Records is requested or required pursuant to oral questions,
interrogatories,
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requests for information or documents or a subpoena or other order from a court
of competent jurisdiction or other process; provided that prior to any
disclosure or release pursuant to clause (ii), the Inspectors shall provide the
Company, to the extent possible, with prompt notice of any such request or
requirement so that the Company may seek an appropriate protective order or
waive such Inspectors' obligation not to disclose such Records; and, provided,
further, that if failing the entry of a protective order or the waiver by the
Company permitting the disclosure or release of such Records, the Inspectors,
upon advice of counsel, are compelled to disclose such Records, the Inspectors
may disclose that portion of the Records which counsel has advised the
Inspectors that the Inspectors are compelled to disclose. Each Selling Holder
agrees that information obtained by it solely as a result of such inspections
(not including any information obtained from a third party who, insofar as is
known to the Selling Holder after reasonable inquiry, is not prohibited from
providing such information by a contractual, legal or fiduciary obligation to
the Company) shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company or its
Affiliates unless and until such information is made generally available to the
public other than as a result of disclosure by such Selling Holder in breach of
this provision. Each Selling Holder further agrees that it will, upon learning
that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(j) In the case of an underwritten offering, the Company will furnish
to each Selling Holder and to each underwriter, a signed counterpart, addressed
to such Selling Holder or underwriter, of (i) an opinion or opinions of outside
counsel to the Company, and (ii) a comfort letter or comfort letters from the
Company's independent certified public accountants (and if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and/or
financial data are, or are required to be, included in the registration
statement), each in customary form and covering such matters of the type
customarily covered by opinions and comfort letters, as the case may be, as the
managing underwriter therefor reasonably requests.
(k) The Company will otherwise use its commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission, and make
available to its securityholders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning on the first day of any
fiscal quarter next succeeding the effective date of the registration statement,
which earnings statement shall cover such twelve month period and shall satisfy
the provisions of Section 11(a) of the Securities Act.
(l) If requested by the Selling Holders owning a majority of the
Shares that constitute Registrable Securities included in such registration
statement, the Company will use its commercially reasonable efforts (a) to cause
any class of Registrable Securities to be listed on a national securities
exchange (if such securities are not already so listed) and on each additional
national securities exchange on which similar securities issued by the Company
are then listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange or (b) to secure designation of all
such Registrable Securities covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, to secure NASDAQ authorization for such
10
Registrable Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with respect to such
Registrable Securities with the National Association of Securities Dealers, Inc.
(the "NASD").
(m) In connection with an underwritten offering, the Company will
participate, to the extent reasonably requested by the managing underwriter for
the offering, in customary efforts to sell the securities under the offering,
including, without limitation, participating in "road shows".
The Company may require each Selling Holder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities by such Selling Holder as the Company may from time to
time reasonably request and such other information as may be legally required in
connection with such registration including, without limitation, all such
information as may be requested by the Commission or the NASD. The Company may
exclude from such registration any Holder who fails to provide such information.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in clauses (iii),
(v) and (vi) of Section 3.1(d), such Selling Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3.1(g),
and, if so directed by the Company, such Selling Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Selling Holder's possession of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. In the event
the Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective by the number of
days during the period from and including the date of the giving of notice
pursuant to clause (iii), (v) or (vi) of Section 3.1(d) to the date when the
Company shall make available to the Selling Holders a prospectus supplemented or
amended to conform with the requirements of Section 3.1(g).
Section 3.2. Registration Expenses. In connection with the Shelf
Registration, every Demand Registration and every Piggy-Back Registration that
includes Registrable Securities (including any registration statement withdrawn
pursuant to Section 2.2(c)), the Company shall pay the registration expenses
incurred in connection with such registration, including without limitation (the
"Registration Expenses"): (i) all registration and filing fees, (ii) fees and
expenses of compliance with securities or blue sky laws and of determination of
eligibility of the Registrable Securities for investment under the laws of such
jurisdiction as the managing underwriters or Holders of a majority of the
Registrable Securities being sold may designate (including reasonable fees and
disbursements of counsel in connection therewith), (iii) printing expenses
(including printing certificates for the Registrable Securities to be sold and
the prospectuses), messenger and delivery expenses, duplication, word
processing, and telephone expenses, (iv) the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties, the expenses of any annual
audit or quarterly review, the expense of any liability insurance) and all fees
and expenses incident to the performance of or compliance with this Agreement by
the Company, (v) the fees and expenses incurred in connection with the listing
of the Registrable Securities, (vi) fees and
11
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses of
any comfort letters or costs associated with the delivery by independent
certified public accountants of a comfort letter or comfort letters requested
pursuant to Section 3.1(j)), fees and disbursements of all underwriters
(excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities), (vii) the fees and expenses of any
special experts retained by the Company in connection with such registration,
(viii) fees and expenses of one firm of counsel for the Holders, which counsel
shall be chosen by Holders of a majority of the Shares included in such
registration statement, and (ix) fees and disbursements of any transfer agent
for the Registrable Securities. The Company shall have no obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1. Indemnification by the Company. The Company agrees to
indemnify, to the fullest extent permitted by law, and hold harmless each
Selling Holder, its partners, officers, directors, employees and agents, and
each Person, if any, who controls such Selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, together
with the partners, officers, directors, employees and agents of such controlling
Person (collectively, the "Controlling Persons"), from and against any loss,
claim, damage, liability, reasonable attorneys' fee, cost or expense and costs
and expenses (including, without limitation, costs of preparation and attorneys'
fees and disbursements) of investigating and defending any such claim
(collectively, the "Damages"), joint or several, and any action in respect
thereof to which such Selling Holder, its partners, officers, directors,
employees, affiliates or agents, or any such Controlling Person may become
subject under the Securities Act or otherwise, insofar as such Damages (or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if amended
or supplemented) relating to the Registrable Securities or any preliminary
prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based upon information furnished in
writing to the Company by a Selling Holder or underwriter expressly for use
therein, and shall reimburse each Selling Holder, its partners, officers,
directors, employees, affiliates and agents, and each such Controlling Person
for any legal and other expenses reasonably incurred by that Selling Holder, its
partners, officers, directors, employees, affiliates and agents, or any such
Controlling Person in investigating or defending or preparing to defend against
any such Damages or proceedings; provided, however, that the Company shall not
be liable to any Selling Holder to the extent that (a) any such Damages arise
out of or are based upon an untrue statement or omission made in any preliminary
prospectus if (i) such Selling Holder was informed by the Company of such untrue
statement or omission and such Selling Holder was provided copies of the final
prospectus by the Company and was informed by the Company of the correction
therein of the untrue statement or omission, but such Selling Holder failed to
send or deliver a copy of the final prospectus with or prior to the delivery
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of written confirmation of the sale by such Selling Holder to the Person
asserting the claim from which such Damages arise, and (ii) the final prospectus
would have corrected such untrue statement or such omission; or (b) any such
Damages arise out of or are based upon an untrue statement or omission in any
prospectus if (i) such untrue statement or omission is corrected in an amendment
or supplement to such prospectus, and (ii) such Selling Holder was informed by
the Company of such untrue statement or omission and, having previously been
furnished by or on behalf of the Company with copies of such prospectus as so
amended or supplemented sufficiently prior to the sale of Registrable Securities
and informed by the Company of the correction therein of the untrue statement or
omission, such Selling Holder thereafter fails to deliver such prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the Person asserting the claim from which such Damages arise. The
Company also agrees to indemnify any underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution of the Registrable Securities, their respective officers and
directors and each Person who controls such underwriters on substantially the
same basis as that of the indemnification of the Selling Holders provided in
this Section 4.1.
Section 4.2. Indemnification by Holders of Registrable Securities.
Each Selling Holder agrees, severally but not jointly, to indemnify and hold
harmless the Company, its officers, directors, employees and agents and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with the partners,
officers, directors, employees and agents of such controlling Person, to the
same extent as the foregoing indemnity from the Company to such Selling Holder,
but only with reference to information related to such Selling Holder, or its
plan of distribution, furnished in writing by such Selling Holder or on such
Selling Holder's behalf expressly for use in any registration statement or
prospectus (and amended or supplemented if amended or supplemented) relating to
such Selling Holder's Registrable Securities, or any amendment or supplement
thereto, or any preliminary prospectus. In case any action or proceeding shall
be brought against the Company or its officers, directors, employees or agents
or any such controlling Person or its partners, officers, directors, employees
or agents, in respect of which indemnity may be sought against such Selling
Holder, such Selling Holder shall have the rights and duties given to the
Company, and the Company or its officers, directors, employees or agents,
controlling Person, or its partners, officers, directors, employees or agents,
shall have the rights and duties given to such Selling Holder, under Section
4.1. Each Selling Holder also agrees to indemnify and hold harmless each other
Selling Holder and any underwriters of the Registrable Securities, and their
respective officers and directors and each Person who controls each such other
Selling Holder or underwriter on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2. The Company shall
be entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above, with respect to information
so furnished in writing by such Persons specifically for inclusion in any
prospectus or registration statement. In no event shall the liability of any
Selling Holder be greater in amount than the dollar amount of the net proceeds
received by such Selling Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
Section 4.3. Conduct of Indemnification Proceedings. Promptly after
receipt by any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2 (an
13
"Indemnified Party") of notice of any claim or the commencement of any action,
the Indemnified Party shall, if a claim in respect thereof is to be made against
the Person against whom such indemnity may be sought (an "Indemnifying Party"),
notify the Indemnifying Party in writing of the claim or the commencement of
such action, provided that the failure to notify the Indemnifying Party shall
not relieve it from any liability except to the extent that the Indemnifying
Party is materially prejudiced as a result of such failure. If any such claim or
action shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party; provided, that the
Indemnifying Party acknowledges, in a writing in form and substance reasonably
satisfactory to such Indemnified Party, such Indemnifying Party's liability for
all Damages of such Indemnified Party to the extent specified in, and in
accordance with, this Article IV. After notice from the Indemnifying Party to
the Indemnified Party of its election to assume the defense of such claim or
action, the Indemnifying Party shall not be liable to the Indemnified Party for
any legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided that the Indemnified Party shall have the right to
employ separate counsel to represent the Indemnified Party and its controlling
Persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Indemnified Party against the Indemnifying
Party, but the fees and expenses of such counsel shall be for the account of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel; (ii) the
claim for indemnification relates to or arises in connection with any criminal
proceeding, action, indictment, allegation or investigation; (iii) the
Indemnified Party reasonably believes an adverse determination with respect to
the claim or proceeding giving rise to such claim for indemnification would be
materially detrimental to or injure the Indemnified Party's reputation or future
business prospects; (iv) the claim seeks an injunction or equitable relief
against the Indemnified Party; (v) the Indemnified Party has been advised in
writing by counsel that a reasonable likelihood exists of a conflict of interest
between the Indemnifying Party and the Indemnified Party; or (vi) the
Indemnifying Party has failed or is failing to vigorously prosecute or defend
such claim. No Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any claim or pending or
threatened proceeding in respect of which the Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or proceeding.
Whether or not the defense of any claim or action is assumed by the Indemnifying
Party, such Indemnifying Party will not be subject to any liability for any
settlement made without its consent, which consent will not be unreasonably
withheld.
Section 4.4. Contribution. If the indemnification provided for in this
Article IV is unavailable or insufficient to hold harmless an Indemnified Party
in respect of any Damages referred to herein, then each Indemnifying Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Damages (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Party, on the one hand, and the
Indemnified Party, on the other, from the offering of the Registrable
Securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is
14
appropriate to reflect not only the relative benefits but also the relative
fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on
the other, in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and the Indemnified Party shall 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
relates to information supplied by such Indemnifying Party or by such
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation (even if the Selling Holders were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
Damages referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 4.4, no underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any Damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no Selling Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities of such Selling Holder were offered to the public (less underwriting
discounts and commissions) exceeds the amount of any Damages which such Selling
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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. Each Selling Holder's obligation to contribute
pursuant to this Section 4.4 is several and not joint.
The indemnity, contribution and expense reimbursement obligations
contained in this Article IV are in addition to any liability any Indemnifying
Party may otherwise have to an Indemnified Party or otherwise. The provisions of
this Article IV shall survive, notwithstanding any transfer of the Registrable
Securities by any Holder or any termination of this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1. Participation in Underwritten Registrations. No Person
may participate in any underwritten registration hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements, and (b) timely completes and executes all ques-
15
tionnaires, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and this Agreement;
provided that (i) no Selling Holder shall be required to make any
representations or warranties except those which relate solely to such Selling
Holder's title to securities included in such registration and its authorization
to transfer such securities and its intended method of distribution, and (ii)
the liability of each Selling Holder to any underwriter under such underwriting
agreement will be limited to liability arising from material misstatements or
omissions in the relevant registration statement or the relevant prospectus
regarding such Selling Holder and its intended method of distribution that were
based upon information furnished in writing by such Selling Holder to the
Company expressly for use therein and any such liability shall not exceed an
amount equal to the amount of net proceeds such Selling Holder derives from such
registration.
Section 5.2. Distribution. During such time as any Selling Holder may
be engaged in a distribution (within the meaning of Regulation M promulgated
under the Exchange Act) of the Registrable Securities, such Selling Holder shall
comply with Regulation M and pursuant thereto it shall, among other things, not
engage in any stabilization activity in connection with the securities of the
Company in contravention of such regulation.
Section 5.3. SEC Reporting.
(a) Rules 144 and 144A. The Company shall timely file any reports
required to be filed by it under the Securities Act and the Exchange Act and, if
at any time the Company is not required to file such reports, the Company will,
upon the request of any Holder or prospective purchaser from such Holder, make
available such information necessary to permit sales pursuant to Rule 144A, and
shall take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 or Rule 144A under the Securities
Act, as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) S-3 Eligibility. The Company shall use its commercially reasonable
efforts to maintain its eligibility to use Form S-3 under the Securities Act.
Section 5.4. Restrictions on Sale.
(a) By the Company. The Company agrees, and shall use its commercially
reasonable efforts to cause its Affiliates to agree, (i) not to effect any
public sale or distribution of any equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to, and during the 90-day period beginning on, the effective date
of any registration statement (except as part of such registration statement)
filed by the Company, in the case of an underwritten offering, if, and to the
extent, reasonably requested by the managing underwriter or underwriters, and
(ii) to use its best efforts to ensure that any agreement entered into after the
date hereof pursuant to which the Company issues or agrees to issue any
privately placed securities (other than to officers or employees) shall contain
a provision
16
under which holders of such securities agree not to effect any sale or
distribution of any such securities during the periods described in (i) above,
in each case, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of any such registration, if permitted);
provided, however, that the provisions of this paragraph shall not prevent (x)
the conversion or exchange of any securities pursuant to their terms into or for
other securities or (y) the issuance of any securities to employees of the
Company or pursuant to any employee plan.
(b) By the Holders. Each Holder agrees, and shall use its commercially
reasonable efforts to cause its Affiliates to agree, not to effect any public
sale or distribution of any equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the 7 days prior
to, and during the 90-day period beginning on, the effective date of any
registration statement (except as part of such registration statement) filed by
the Company, in the case of an underwritten offering if, and to the extent,
reasonably requested by the managing underwriter(s); provided that all executive
officers and directors of the Company agree to similar restrictions, which the
Company will use its best efforts to enforce and provided further that the
Company informs such Holder of the expected effective date at least fifteen (15)
days prior thereto. Notwithstanding the provisions of the preceding sentence, a
Holder may sell any or all of its Registrable Securities in a private sale.
Section 5.5. Notices . All notices, demands, requests, consents,
approvals or other communications (collectively, "Notices") required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by a
reputable air courier service with tracking capability, with charges prepaid, or
transmitted by hand delivery or facsimile, addressed as set forth below, or to
such other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by facsimile. Notice otherwise sent as provided
herein shall be deemed given on the next business day following delivery of such
notice to a reputable air courier service.
If to the Company, to it at:
Opus360 Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
17
if to Proha:
Proha Plc
Xxxxxxxxxxxxx 0X
XXX-00000 Xxxxx
Xxxxxxx
Attention: Pekka Pere
Facsimile: 011-358-20-4362-500
and a copy (which shall not constitute notice) to:
White & Xxxx XXX
Xxxxxxxxxx 00
XXX-00000 Xxxxxxxx
Xxxxxxx
Attention: Petri Y.J. Haussila, Esq.
Facsimile: 011-358-9-228-64-228
If to any other Holder, to it at the address(es) or facsimile
number(s) set forth in the notice referred to in Section 5.11 with
respect to such Holder.
Section 5.6. Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York, and each party hereto
submits to the non-exclusive jurisdiction of the state and federal courts within
the County of New York in the State of New York. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York
and, by execution and delivery of this Agreement, each party hereto hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each party hereto
further irrevocably consents to the service of process out of any of the
aforementioned courts in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such party at its
address set forth in Section 5.5, such service to become effective seven days
after such mailing. Nothing herein shall affect the right of Proha or Company to
serve process in any of the matters permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any other jurisdiction.
Each party hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
Section 5.7. Entire Agreement. This Agreement (including all
agreements entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto and thereto) constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, understandings, negotiations
18
and discussions between the parties, whether oral or written, with respect to
the subject matter hereof.
Section 5.8. Modifications and Amendments. No amendment, modification
or termination of this Agreement shall be binding upon any other party unless
executed in writing by (a) the Company and (b) by the Holders of a majority of
the Shares held by all Holders that constitute Registrable Securities.
Section 5.9. Waivers and Extensions. Any party to this Agreement may
waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless
it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
Section 5.10. Titles and Headings. Titles and headings of sections of
this Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
Section 5.11. Assignment. This Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by the Company. This
Agreement and the rights, duties and obligations hereunder may be assigned or
delegated by any Holder to a transferee or assignee of Registrable Securities in
its sole discretion; provided, however, that the Company shall not be obligated
to recognize any such assignment or delegation, and such transferee or assignee
shall not become a Holder, unless (a) the Company has received written notice of
the name and address of such transferee or assignee and of the Registrable
Securities with respect to which such assignment and/or delegation has been
made, and (b) such transferee or assignee agrees to be bound by this Agreement
as if such transferee or assignee was an original party to this Agreement. This
Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties and their respective successors and permitted
assigns.
Section 5.12. Severability. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
Section 5.13. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
19
Section 5.14. Further Assurances. Each party hereto, upon the request
of any other party hereto, shall take all such further acts and execute,
acknowledge and deliver all such further instruments and documents as may be
necessary or desirable to carry out the transactions contemplated by this
Agreement.
Section 5.15. Remedies Cumulative; Specific Performance. The remedies
provided herein shall be cumulative and shall not preclude the assertion by any
party hereto of any other rights or the seeking of any remedies against the
other party hereto. In the event of a breach or a threatened breach by any party
to this Agreement of its obligations under this Agreement, any party injured or
to be injured by such breach will be entitled to specific performance of its
rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law.
The parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense or objection in any action for
specific performance or injunctive relief that a remedy at law would be adequate
is waived.
Section 5.16. Other Registration Rights. Without the written consent
of the Holders of a majority of the Shares held by all Holders that constitute
Registrable Securities, the Company shall not grant to any Person the right to
request the Company to register any securities of the Company under the
Securities Act unless the rights so granted are subject to the prior rights of
the Holders of Registrable Securities set forth herein, and are not otherwise in
conflict or inconsistent with the provisions of this Agreement.
* * * * *
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
OPUS360 CORPORATION
By /s/ Xxx Xxxxxxxx
------------------------------
Name: Xxx Xxxxxxxx
Title: Chairman, Chief Executive
Officer and President
PROHA PLC
By /s/ Pekka Pere
-------------------------------
Name: Pekka Pere
Title: Chief Executive Officer
[Registration Rights Signature Page]
21
