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EXHIBIT 10.35
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated September 30, 1999, is
entered into by General Automation, Inc., a Delaware corporation (the
"Company"), and Boundless Technologies, Inc., a Delaware corporation formerly
known as SunRiver Data Systems ("Boundless").
1. Definitions. Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms herein defined.
1.1 Agreement. "Agreement" means this Registration Rights Agreement.
1.2 Board. "Board" means the Board of Directors of the Company.
1.3 Boundless' Registrable Securities. "Boundless' Registrable
Securities" means the 1,133,333 shares of Common Stock to be issued by the
Company to Boundless pursuant to that certain letter agreement of even date
herewith between the Company and Boundless; and any securities issued or
issuable with respect to the Common Stock referred to in clause (a) above by way
of a stock dividend or stock split or in connection with a combination of
shares, reclassification, recapitalization, merger or consolidation or
reorganization; provided, however, that such shares of Common Stock shall only
be treated as Boundless' Registrable Securities if and so long as they have not
been (i) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction; or (ii) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof or other applicable exemption so that
all transfer restrictions and restrictive legends with respect to such Common
Stock are removed upon the consummation of such sale.
1.4 Commission. "Commission" means the United States Securities and
Exchange Commission.
1.5 Common Stock. "Common Stock" means the Common Stock of the
Company.
1.6 Holder. "Holder" of any security means the record owner of such
security.
1.7 Other Registrable Securities. "Other Registrable Securities"
means all Common Stock, whether now outstanding or hereafter issued, which the
Company has agreed to register, or may hereafter agree to register, other than
Boundless' Registrable Securities.
1.8 Person. "Person" includes any natural person, corporation,
trust, association, company, partnership, joint venture and other entity and any
government, governmental agency, instrumentality or political subdivision.
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1.9 Register, Registered and Registration. The terms "register,"
"registered" and "registration" 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.
1.10 Registrable Securities. "Registrable Securities" means the
Other Registrable Securities and Boundless' Registrable Securities,
collectively.
1.11 Securities Act. "Securities Act" means the United States
Securities Act of 1933, as amended.
2. Incidental Registration.
2.1 Notice to Boundless, Etc. Each time the Company shall determine
to file a registration statement under the Securities Act (other than on Form
X-0, X-0 or a registration statement on any form covering solely an employee
benefit plan) in connection with the proposed offer and sale for money of any of
its securities for its own account, the Company agrees to promptly give written
notice of its determination to Boundless. Upon the written request of Boundless
given within twenty (20) days after the receipt of such written notice from the
Company, subject to Section 2.3 below, the Company agrees to cause all of
Boundless' Registrable Securities, or such portion thereof as Boundless has
specified to the Company in writing, to be included in such registration
statement and registered under the Securities Act, and included in all related
state registrations and/or qualifications, if any, all to the extent requisite
to permit the sale or other disposition by Boundless of Boundless' Registrable
Securities to be so registered.
2.2 Inclusion in Underwriting. If the registration of which the
Company gives written notice pursuant to Section 2.1 is for a public offering
involving an underwriting, the Company agrees to so advise Boundless as a part
of its written notice. In such event, the right of Boundless to registration
pursuant to this Section 2 shall be conditioned upon Boundless' participation in
such underwriting and the inclusion of Boundless' Registrable Securities in the
underwriting to the extent provided herein. If any of Boundless' Registrable
Securities are to be distributed through such underwriting, Boundless shall
enter into (together with the Company and the other Holders distributing their
securities through such underwriting) an underwriting agreement with the
underwriter or underwriters selected for such underwriting by the Company,
provided that such underwriting agreement is in customary form.
2.3 Limitations. Notwithstanding any other provision of this Section
2, if the managing underwriter of an underwritten distribution advises the
Company in writing that in its good faith judgment the number of shares of
Registrable Securities requested to be registered exceeds the number of shares
of Registrable Securities which can be sold in such offering, then the number of
shares of Registrable Securities so requested to be included in the offering
shall be reduced to that number of shares which in the good faith judgment of
the managing underwriter can be sold in such offering. Such reduced number of
shares to be included in the registration
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shall be allocated as follows: first to the Company with respect to all of the
shares to be registered for the account of the Company; and second, to the
Holders of shares of Registrable Securities requesting to participate in such
registration, on a pro rata basis based on the total number of shares of
Registrable Securities held by each such Holder. All shares of Boundless'
Registrable Securities which are excluded from the underwriting by reason of the
underwriter's marketing limitation and all shares of Boundless' Registrable
Securities not originally requested to be so included shall not be included in
such registration.
2.4 Abandonment of Registration. Notwithstanding any other provision
of this Agreement, the Company may at any time, at the discretion of the Board,
abandon or terminate any registration statement, either prior to or after its
filing with the Commission, without liability or obligation to Boundless.
3. Expenses.
3.1 Registration Expenses. Subject to Section 3.2 below, the Company
agrees to bear all fees, costs and expenses with respect to the inclusion of
shares of Boundless' Registrable Securities in any registration statement
pursuant to Section 2 hereof.
3.2 Company Expenses; Expenses of Boundless. The fees, costs and
expenses of registration to be borne as provided in Section 3.1 above shall
consist of all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and disbursements
of counsel for the underwriter or underwriters of such securities (if the
Company and/or selling security holders are otherwise required to bear such fees
and disbursements), and all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in which
the securities to be offered are to be registered or qualified. The fees, costs
and expenses to be borne by the Company under Section 3.1 above shall not
include the fees, costs or expenses of any counsel to Boundless or stock
transfer taxes or underwriters' discounts and commissions relating to any of
Boundless' Registrable Securities.
4. Indemnification.
4.1 Indemnification by Company. The Company hereby agrees to
indemnify and hold harmless Boundless, its officers, directors and each Person
who controls Boundless within the meaning of the Securities Act, from and
against, and agrees to reimburse Boundless, its officers, directors and
controlling Persons with respect to, any and all claims, actions (actual or
threatened), demands, losses, damages, liabilities, costs and expenses,
including without limitation attorneys' fees, to which any such indemnified
Person may become subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, any prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged
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omission to state therein 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; provided, however, that the Company will
not be liable in any such case to the extent that any such claim, action,
demand, loss, damage, liability, cost or expense suffered by Boundless, its
officers, directors and controlling Persons is caused by an untrue statement or
alleged untrue statement or omission or alleged omission so made in strict
conformity with written information furnished by Boundless specifically for use
in the preparation thereof; provided, further, that with respect to an untrue
statement or alleged untrue statement or omission or alleged omission made in a
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the Commission at the time the registration statement becomes
effective (or an amended prospectus filed with the Commission pursuant to Rule
424(b)) (the "Final Prospectus"), or made in the Final Prospectus but eliminated
in any amendment or supplement filed subsequent to the Final Prospectus (a
"Subsequent Amendment"), this indemnity shall not inure to the benefit of
Boundless, its officers, directors or controlling Persons if, having previously
been furnished by or on behalf of the Company with copies of the Final
Prospectus or Subsequent Amendment, as applicable, Boundless thereafter fails to
deliver, prior to or concurrently with the sale of securities to such person, a
copy of the Final Prospectus or Subsequent Amendment, as applicable, to the
person asserting the claim, action, demand, loss, damage, liability, cost or
expense.
4.2 Indemnification by Boundless. If any shares of Boundless'
Registrable Securities are included in a registration statement pursuant to the
provisions of this Agreement, Boundless shall indemnify and hold harmless the
Company, its officers, directors, legal counsel and accountants and each Person
who controls the Company within the meaning of the Securities Act, from and
against, and agrees to reimburse the Company, its officers, directors, legal
counsel, accountants and controlling Persons with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs or expenses,
including without limitation attorneys' fees, to which the Company, its
officers, directors, legal counsel, accountants or such controlling Persons may
become subject under the Securities Act or otherwise, insofar as such claims,
actions, demands, losses, damages, liabilities, costs or expenses are caused by
any untrue or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or are caused by the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was so made in reliance upon and in strict conformity with written
information furnished by Boundless specifically for use in the preparation
thereof.
4.3 Indemnification Procedure. Promptly after receipt by a party
indemnified pursuant to the provisions of Section 4.1 or 4.2 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of Section 4.1 or
4.2, notify the indemnifying party of the commencement thereof; but the omission
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so to notify the indemnifying party will not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section 4 and
shall not relieve the indemnifying party from liability under this Section 4;
provided that if the indemnifying party has not received notice of the claim and
the indemnified party fails to vigorously defend the claim or settles or
compromises the claim without the approval of the indemnifying party, the
indemnifying party shall be relieved of liability under this Section 4. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party shall have the right,
at its own cost and expense, to select separate counsel (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties). Upon the permitted assumption by
the indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under Section 4.1 or 4.2 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof (other than reasonable costs of investigation) unless the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time, the
indemnifying party and its counsel do not actively and vigorously pursue the
defense of such action, or the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
No indemnifying party shall be liable to an indemnified party for any settlement
of any action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such settlement.
No indemnifying party will 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 with respect to such claim or litigation.
4.4 Contribution. If the indemnification provided for in Section 4.1
or 4.2 is held by a court of competent jurisdiction to be unavailable to a party
to be indemnified with respect to any claims, actions, demands, losses, damages,
liabilities, costs or expenses referred to therein, then each indemnifying party
under any such Section, in lieu of indemnifying such indemnified party
thereunder, hereby agrees to contribute to the amount paid or payable by such
indemnified party as a result of such claims, actions, demands, losses, damages,
liabilities, costs or expenses, including without limitation attorneys' fees, 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 in
connection with the statements or omissions which resulted in such claims,
actions, demands, losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged
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untrue statement of a material fact or the omission or alleged 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.
4.5 Limitation on Boundless' Obligations. Notwithstanding the
foregoing, in no event shall Boundless' indemnification or contribution
obligations under this Section 4 exceed an amount equal to the per share public
offering price (less any underwriting discount and commissions) multiplied by
the number of shares of Boundless' Registrable Securities sold pursuant to the
registration statement which gives rise to such obligation to contribute or
indemnify (less the aggregate amount of any damages which Boundless has
otherwise been required to pay in respect of such claim, action, demand, loss,
damage, liability, cost or expense or any substantially similar claim, action,
demand, loss, damage, liability, cost or expense arising from the sale of
Boundless' Registrable Securities).
4.6 Exceptions in Event of Fraud. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution hereunder from any person who was not guilty
of such fraudulent misrepresentation.
5. Boundless Information. If any shares of Boundless' Registrable
Securities are to be included in any registration to be effected pursuant to
this Agreement, the Company may require Boundless to furnish the Company with
such information with respect to Boundless and the distribution of such shares
of Boundless' Registrable Securities as the Company may from time to time
reasonably request in writing to comply with such disclosure obligations as
shall be required by law or by the Commission in connection therewith, and
Boundless shall furnish the Company with such information.
6. Forms. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as the forms herein referenced.
7. Transfer of Registration Rights. The rights to cause the Company to
register securities granted to Boundless pursuant to this Agreement may be
assigned by Boundless to any transferee of not less than 100,000 shares of
Boundless' Registrable Securities, provided that (a) the Company is notified in
writing of such assignment and of the name and address of the transferee; and
(b) the transferee agrees to be bound by the terms and conditions of this
Agreement in writing in a form reasonably acceptable to the Company.
8. Miscellaneous.
8.1 Waivers and Amendments. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally or by course of
dealing, but only by a statement in writing signed by the Company and Boundless.
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8.2 Notices. All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (i) when
hand delivered to the other party; or (ii) when received when sent by facsimile
at the address and number set forth below (provided, however, that notices given
by facsimile shall not be effective unless either (a) a duplicate copy of such
facsimile notice is promptly given by depositing the same in a United States
post office with first-class postage prepaid and addressed to the parties as set
forth below, or (b) the receiving party delivers a written confirmation of
receipt for such notice either by facsimile or any other method permitted under
this Section; additionally, any notice given facsimile shall be deemed received
on the next business day if such notice is received after 5:00 p.m. (recipient's
time) or on a nonbusiness day); or (iii) three (3) business days after the same
have been deposited in a United States post office with first class or certified
mail return receipt requested postage prepaid and addressed to the parties as
set forth below; or (iv) the next business day after the same have been
deposited with a national overnight delivery service reasonably approved by the
parties (Federal Express and DHL WorldWide Express being deemed approved by the
parties), postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider.
To: General Automation, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
FAX: (000) 000-0000
To: Boundless Technologies, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
FAX: ________________
With a copy to:
Boundless Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chairman
FAX: ________________
Each party shall make an ordinary, good faith effort to ensure that it will
accept or receive notices that are given in accordance with this Section, and
that any person to be given notice actually receives such notice. A party may
change or supplement the addresses given above, or
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designate additional addresses, for purposes of this Section by giving the other
party written notice of the new address in the manner set forth above.
8.3 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
8.4 Headings. The headings of the sections, subsections and
paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
8.5 Choice of Law. It is the intention of the parties that the
internal substantive laws, and not the laws of conflicts, of the State of
Delaware should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
8.6 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
8.7 In witness whereof, the parties hereto have executed this
Agreement.
GENERAL AUTOMATION, INC. BOUNDLESS TECHNOLOGIES, INC.
By: By:
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Xxxx Xxxxxxxx, President
Its:
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(Please print name and title)
