Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of November 15, 2002, by and
between Integrated Information Systems, Inc., a Delaware corporation ("IIS"),
and Xxxxxxxxxx Enterprises, Inc., an Arizona corporation d/b/a Xxxxxxxxxx
Technology Group ("CTG").
RECITALS
WHEREAS, IIS and CTG are parties to a Master Transaction Agreement dated
November 13, 2002, as amended (the "Master Agreement"), pursuant to which, among
other transactions, IIS will purchase certain assets, assume certain liabilities
and hire certain employees of CTG and will issue shares of its $0.001 par value
Common Stock as part of the consideration therefor under Sections 6.a.iv and
6.a.v of the Master Agreement (the "CTG Shares"); and
WHEREAS, IIS has agreed to grant to CTG registration rights in the CTG
Shares.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, IIS and CTG agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
a. "Commission" shall mean the Securities and Exchange Commission,
or any successor agency.
b. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
c. "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
d. "Registrable Securities" shall mean all of the following to the
extent the same have not been sold to the public: (i) the CTG Shares; or (ii)
stock issued in respect of the CTG Shares in any reorganization; or (iii) stock
issued in respect of the CTG Shares as a result of a stock split, stock
dividend, recapitalization or combination. Notwithstanding the foregoing,
Registrable Securities shall not include otherwise Registrable Securities: (i)
sold by a person or entity other than CTG; or (ii) (A) sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions, and restrictive legends with respect
thereto, if any, are removed
upon the consummation of such sale or (C) the registration rights associated
with such securities have been terminated pursuant to Section 13 of this
Agreement.
e. "Rule 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144A.
f. "Rule 144A" shall mean Rule 144A under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144.
g. "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
2. Restrictions on Transferability. The Registrable Securities (as
defined herein) shall not be sold, assigned, transferred or pledged except upon
the conditions specified in this Agreement, which conditions are intended to
ensure compliance with the provisions of the Securities Act.
3. Restrictive Legend. Each certificate representing Registrable
Securities shall be stamped or otherwise imprinted with a legend substantially
in the following form (in addition to any legend required under applicable state
securities laws or otherwise):
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, OFFERED, PLEDGED, OR OTHERWISE DISTRIBUTED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND SUCH
LAWS COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT, OFFER, PLEDGE OR OTHER DISTRIBUTION FOR VALUE IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND SUCH
LAWS.
CTG consents to IIS making a notation on its records and giving instructions to
any transfer agent of the Registrable Securities in order to implement the
restrictions on transfer established in this Agreement.
4. Notice of Proposed Transfer. CTG agrees not to make any disposition of
all or any portion of any Registrable Securities unless and until:
a. There is in effect a registration statement under the Securities
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
b. (i) CTG shall have notified IIS of the proposed disposition and
shall have furnished IIS with a detailed statement of the circumstances
surrounding the proposed
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disposition, and (ii) if requested by IIS, CTG shall furnish IIS with an opinion
of counsel, reasonably satisfactory to IIS that such disposition shall not
require registration of such shares under the Securities Act.
5. Piggyback Registration.
a. If at any time or from time to time, IIS shall determine to
register any of its Common Stock, for its own account or the account of any of
its other shareholders, other than (X) a registration on Form S-8, or its
successor form, relating to employee benefit plans, (Y) a registration on Form
S-4, or its successor form, relating to a transaction of the type specified in
paragraph (a) of SEC Rule 145, a merger in which the applicable state law would
not require the solicitation of the votes or consents of all of the security
holders of the company being acquired, an exchange offer for securities of the
issuer or another entity or any combination of the foregoing or relating to the
or resale of any such securities acquired pursuant to such a registration
statement, or (Z) a transaction relating solely to the sale of debt, convertible
debt or convertible preferred instruments, which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of Registrable Securities, IIS will:
i. give to CTG written notice thereof as soon as practicable
prior to filing the registration statement; and
ii. include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within fifteen (15) days after receipt of such written notice
from IIS by CTG, except as set forth in Subsection 5.b. below.
b. If the registration is for a registered public offering involving
an underwriting, IIS shall so advise CTG as a part of the written notice given
pursuant to Subsection 5.a.i. In such event, the right of CTG to registration
pursuant to Section 5 shall be conditioned upon CTG's participation in such
underwriting and the inclusion of CTG's Registrable Securities in the
underwriting to the extent provided herein. CTG, IIS and any other holders of
securities of IIS distributing their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by IIS. Notwithstanding any other
provision of this Section 5, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting. IIS shall so
advise CTG and any other holders distributing their securities through such
underwriting pursuant to piggyback registration rights similar to those granted
hereunder, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among CTG and all such other holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by CTG and
such other holders at the time of filing the registration statement. If any
holder disapproves of the terms of any such underwriting, such holder it may
elect to withdraw therefrom by written notice to IIS and the managing
underwriter.
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6. Expenses of Registration. All expenses incurred in connection with
registration, including without limitation all registration and filing fees,
printing expenses, fees and disbursements of counsel for IIS shall be borne by
IIS, except that IIS shall not be required to pay underwriters' fees, discounts
or commissions relating to Registrable Securities or fees of a separate legal
counsel of a Holder.
7. Registration Procedures. In the case of each registration effected by
IIS pursuant to this Agreement in which CTG participates, IIS will keep CTG
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense IIS will:
a. keep such registration pursuant continuously effective for a
period of ninety (90) days, respectively, or, such reasonable period necessary
to permit CTG to complete the distribution described in the registration
statement relating thereto, whichever first occurs;
b. 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 comply with the provisions of the Securities
Act;
c. furnish such number of prospectuses and other documents incident
thereto as CTG from time to time may reasonably request;
d. use best efforts to cause the Registrable Securities covered by
such registrations to be listed on each securities exchange at which similar
securities issued by IIS are then listed; and
e. notify CTG, at any time a prospectus covered by such registration
statement is required to be delivered under the Securities Act, of the happening
of any event of which it has knowledge 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 the
light of the circumstances then existing.
8. Indemnification.
a. In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Section 5, IIS will indemnify
and hold harmless CTG against any losses, claims, damages or liabilities, joint
or several, to which CTG may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon 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 any
violation by IIS of any rule or regulation promulgated under the Securities Act
or any state securities law applicable to IIS and relating to action or inaction
required of IIS in connection with any such
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registration, and will reimburse CTG for any reasonable legal and any other
expenses incurred in connection with investigating, defending or settling any
such claim, loss, damage, liability or action, provided that IIS will not be
liable in any such case to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement or omission based
upon written information furnished to IIS by CTG for use therein.
b. CTG will, if Registrable Securities held by or issuable to CTG
are included in the securities as to which such registration is being effected ,
indemnify and hold harmless IIS, each of its directors and officers, each person
who controls IIS and each underwriter within the meaning of the Securities Act,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
IIS, such directors, officers, partners, persons or underwriters for any
reasonable legal or any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to IIS by CTG for use therein.
c. Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party') promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment to
the Indemnifying Party. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation.
d. If the indemnification provided for in this Section 8 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other hand in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant
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equitable considerations. The relevant 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 to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
e. The indemnification provided by this Section 8 shall be a
continuing right to indemnification and shall survive the registration and sale
of any securities by any party entitled to indemnification hereunder and the
expiration or termination of this Agreement.
9. Lockup Agreement. In consideration for IIS agreeing to its obligations
under this Agreement, CTG agrees in connection with any registration of IIS'
securities (whether or not CTG is participating in such registration) upon the
request of IIS and the underwriters managing any underwritten offering of IIS'
securities, not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Registrable Securities (other than
those included in the registration) without the prior written consent of IIS or
such underwriters, as the case may be, for such period of time from the
effective date of such registration as IIS and the underwriters may specify.
10. Information. CTG shall promptly furnish to IIS such information
regarding CTG and any distribution proposed by CTG as IIS may request in writing
and as shall be required in connection with any registration referred to herein.
11. Rule 144 and l44A Reporting. With a view to making available to CTG
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, IIS
agrees to: (a) make and keep public information available, as those terms are
understood and defined in Rule 144 and Rule l44A; and (b) use its best efforts
to file with the Commission in a timely manner all reports and other documents
required of IIS under the Securities Act and the Exchange Act.
12. Transfer of Registration Rights. The rights to cause IIS to register
Registrable Securities of CTG and keep information available granted to CTG by
IIS under Section 5 may be assigned by CTG to either or both of the two
shareholders of CTG as of the date hereof; provided, that IIS is given written
notice by the Holder at the time of or within a reasonable time after said
transfer, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned; and, provided, further, that any such assignee agrees to be
bound by the terms herein (in which case, references to CTG herein shall be
deemed to be references to each assignee).
13. Termination of Rights. This Agreement shall terminate on the earlier
of (a) the end of the first three-month period in which CTG may then sell all
Registrable Securities without registration under the Securities Act by virtue
of Rule 144 or (b) the fifth anniversary of the date hereof.
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14. Representations and Warranties of IIS. IIS represents and warrants to
CTG as follows:
a. The execution, delivery and performance of this Agreement by IIS
has been duly authorized by all requisite corporate action and will not violate
any provision of law, any order of any court or other agency of government, the
Certificate of Incorporation or Bylaws of IIS, as the same have been amended and
restated through the date hereof.
b. This Agreement has been duly executed and delivered by IIS and
constitutes the legal, valid and binding obligation of IIS, enforceable in
accordance with its terms, subject to (1) applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and moratorium laws and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) the availability of equitable remedies as such remedies may be limited by
equitable principles of general applicability (regardless of whether enforcement
is sought in a proceeding in equity or at law).
15. Miscellaneous.
a. Amendments. This Agreement may be amended only by a writing
signed by all parties hereto.
b. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall constitute effective execution
and delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all purposes.
c. Notices, Etc. All notices, consents, waivers and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a party when: (i) delivered to the appropriate address
by hand or by nationally recognized overnight courier service (costs prepaid);
(ii) sent by facsimile or e-mail with confirmation of transmission by the
transmitting equipment; or (iii) received or rejected by the addressee, if sent
by certified mail, return receipt requested, in each case to the following
addresses, facsimile numbers or e-mail addresses and marked to the attention of
the person (by name or title) designated below (or to such other address,
facsimile number, e-mail address or person as a party may designate by notice to
the other parties):
CTG: Xxxxxxxxxx Technology Group
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, CEO
Fax Number: 000-000-0000
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Shareholders: Xxxxxxx Xxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
000 Xxxx Xxxxxxxx
Xxxxxxxxx 000X
Xxxxxxx, Xxxxxxx 00000
(from and after November 15, 2002)
IIS: Integrated Information Systems, Inc.
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, CEO
Fax Number: 000-000-0000
Notwithstanding the foregoing, notices to CTG or to the shareholders if
assignees of CTG hereunder may be sent to the address for each set forth on the
books of IIS.
d. Nonpublic Information. Any other provisions of this Agreement to
the contrary notwithstanding, IIS' obligation to file a registration statement,
or cause such registration statement to become and remain effective, shall be
suspended for a period not to exceed 30 days (and for periods not exceeding, in
the aggregate, 60 days in any 24-month period) if there exists at the time
material non-public information relating to IIS which, in the reasonable opinion
of IIS, should not be disclosed.
e. Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
f. Dilution. If, and as often as, there is any change in the Common
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue with respect to
the Common Stock as so changed.
g. Arbitration. Any controversy relating to this Agreement, any
transaction contemplated hereby, or relating to the breach hereof shall be
settled by arbitration in Phoenix, Arizona in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect. The
award rendered by the arbitrator(s) shall be final and judgment upon the award
rendered by the arbitrator(s) may be entered upon it in any court having
jurisdiction thereof. The arbitrator(s) shall possess the powers to issue
mandatory orders and restraining orders concerning such arbitration. The
expenses of the arbitration shall be borne by the losing party unless otherwise
allocated by the arbitrator(s).
h. Entire Agreement and Modification. This Agreement supersedes all
prior agreements, whether written or oral, between the parties with respect to
its subject matter and constitutes a complete and exclusive statement of the
terms of the agreement between the parties with respect to its subject matter.
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i. Governing Law. This Agreement will be governed by and construed
under the laws of the State of Arizona without regard to conflicts-of-laws
principles that would require the application of any other law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Integrated Information Systems, Inc., Xxxxxxxxxx Enterprises, Inc., an
a Delaware corporation Arizona corporation d/b/a Xxxxxxxxxx
Technology Group
By: /s/ Xxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx Xxxxx Xxxxxxxxxx
Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxxxxx Xxxxx Xxxxxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
