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EXHIBIT 10.15
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the
29th day of May, 1998, by and among XXXXXX XXXXX & ASSOCIATES, INC., a
California corporation ("SM&A") and Xxxxx X. Xxxxxxx and Xxxxxxx X.X. Hee,
individually and as attorney for all other shareholders of Space Applications
Corporation listed on Schedule 1.0 attached hereto (collectively, with Xxxxxxx
and Hee, the "SAC Shareholders").
R E C I T A L S:
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A. SM&A, Space Applications Corporation ("SAC") and SAC Acquisition
Corporation ("Subsidiary"), a wholly owned subsidiary of SM&A, entered into that
certain Agreement and Plan of Reorganization and Merger dated May 18, 1998 (the
"Merger Agreement") pursuant to which Subsidiary will merge into SAC (the
"Merger"). Pursuant to the Merger, SM&A will issue shares of Common Stock of
SM&A (the "SM&A Stock") to the SAC Shareholders.
B. SM&A and the SAC Shareholders desire to set forth in a single
agreement the registration rights to be granted to the SAC Shareholders, and the
covenants to be made in connection therewith, with respect to the shares of SM&A
Stock issued to the SAC Shareholders pursuant to the Merger.
NOW, THEREFORE, for good and valuable consideration, the SAC
Shareholders and SM&A agree as follows:
1. Definitions.
For purposes of this Agreement:
(a) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of such registration
statement or document;
(b) The term "Registrable Securities" means (i) shares of SM&A Stock
issuable to the SAC Shareholders upon the conversion of the common stock of SAC
as a result of the Merger, and (ii) any SM&A Stock issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution (including a stock split, stock
dividend, recapitalization or similar event) with respect to, or in exchange for
or in replacement of, SM&A Stock referred to in (i) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which his rights under this Agreement are not assigned;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of SM&A Stock outstanding which are
Registrable Securities, and the number of shares of SM&A Stock issuable pursuant
to then exercisable or convertible securities which would be Registrable
Securities upon issuance;
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(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 12 hereof; and
(e) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the Securities and Exchange Commission ("SEC") which permits inclusion or
incorporation of substantial information by reference to other documents filed
by SM&A with the SEC.
2. Request for Registration.
(a) If SM&A shall receive at any time after February 1, 1999, a written
request from the Holders of at least thirty-five percent (35%) of the
Registrable Securities then outstanding that SM&A file a registration statement
on Form S-3 under the Act covering the registration of at least thirty-five
percent (35%) of the Registrable Securities then outstanding (or a lesser
percent if the aggregate offering price would exceed $2,000,000), then SM&A
shall, within ten (10) days of the receipt thereof, give written notice of such
request to all Holders and shall, subject to the limitations of Section 2(b),
use its best efforts to effect, at the earliest possible date, but in any event
within forty-five (45) days of the date of the original written request from the
Holders, file the registration on registration statement under the Act on Form
S-3 covering all Registrable Securities which the Holders thereof request to be
registered within twenty (20) days of the mailing of such notice by SM&A in
accordance with Section 18 below.
(b) If the Holders initiating the registration request under this
Section 2 ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise SM&A
as a part of their request made pursuant to this Section 2 and SM&A shall
include such information in the written notice referred to in Section 2(a). The
underwriter with respect to such Form S-3 registration only will be selected by
a majority in interest of the Initiating Holders and shall be reasonably
acceptable to SM&A. In such event, the right of any Holder to include his
Registrable Securities in such registration on Form S-3 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting shall (together with SM&A as
provided in Section 4(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting in the
manner set forth above it being understood that each Holder shall be required to
make only those representations (if any) as would be customary for a holder of a
similar percentage of similar securities. Notwithstanding any other provision of
this Section 2, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated equally among all Holders thereof, including the
Initiating Holders, on a percentage basis (as nearly as practicable) equal to
the percentage of SM&A Stock requesting registration and permitted by such
underwriters to be sold by SM&A shareholders existing immediately prior to the
Merger. To the extent Registrable Securities requested to be registered are
excluded from
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the offering pursuant to the immediately preceding sentence, the Holders of such
Registrable Securities shall have the right to one additional demand
registration pursuant to this Section 2.
SM&A may include in the registration under this Section 2 any other
shares of SM&A Stock (including issued and outstanding shares of SM&A Stock as
to which the holders thereof have contracted with SM&A for "piggyback"
registration rights) so long as the inclusion in such registration of such
shares (i) will not, in the opinion of the managing underwriter, interfere with
the successful marketing in accordance with the intended method of sale or other
disposition of all the shares of Registrable Securities sought to be registered
by the Holder or Holders of Registrable Securities pursuant to this Section 2
and (ii) will not result in the exclusion from such registration of any
Registrable Securities. If it is determined as provided above that there will be
such interference, the other shares of SM&A Stock sought to be included shall be
excluded to the extent deemed appropriate by the managing underwriter.
(c) SM&A is obligated to effect only two (2) such registrations pursuant
to this Section 2 except as provided in Section 2(b).
(d) Notwithstanding the foregoing, if SM&A shall furnish to Holders
requesting a registration statement pursuant to this Section 2, a certificate
signed by the President of SM&A stating that in the good faith judgment of the
Board of Directors of SM&A, it would be seriously detrimental to SM&A and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, SM&A shall have
the right to defer taking action with respect to such filing for a period of not
more than ninety (90) days after receipt of the request of the Initiating
Holders; provided, however, that SM&A may not utilize this right more than once
in any twelve (12) month period.
(e) SM&A shall not be required to prepare and file a registration
statement pursuant to this Section 2 which would become effective within one
hundred eighty (180) days following the effective date of a registration
statement filed by SM&A with the SEC pertaining to an underwritten public
offering of securities for cash for the account of SM&A if the Initiating
Holders' request for registration is received by SM&A subsequent to such time as
SM&A in good faith gives written notice to the holders of Registrable Stock that
SM&A is commencing to prepare a registration statement and SM&A is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective.
A registration requested pursuant to this Section 2 shall not be deemed
to have been effected until such time as a registration statement with respect
thereto has become effective in compliance with the provisions of the Act.
3. SM&A Registration.
If (but without any obligation to do so) SM&A proposes to register
(including for this purpose a demand registration effected by SM&A for
shareholders of SM&A existing prior to the Merger) any of its common stock under
the Act in connection with the public offering of such common stock solely for
cash (other than a registration relating solely to the sale of securities in an
employee benefit plan or a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement
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covering the sale of the Registrable Securities), then SM&A shall, at such time,
promptly give each Holder written notice of such registration. Upon the written
request of each Holder given within twenty (20) days after mailing of such
notice by SM&A in accordance with Section 18, SM&A shall, subject to the
provisions of Section 8, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered
subject to the terms, conditions and contractual obligations of such
underwritten offering. SM&A reserves the right to withdraw any proposed
registration in which Holders have requested to participate pursuant to this
Section 3.
4. Obligations of SM&A.
Whenever required under this Agreement to effect the registration of any
Registrable Securities, SM&A shall, as soon as reasonably practicable:
(a) prepare and (using its best efforts to do so, but in any event
within forty-five (45) days of the date of a written request) file with the SEC
a registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective, and, upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to one
(1) year;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep such registration statement
effective and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the SM&A Stock covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that SM&A shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions and use its best efforts to cause
all Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental agencies
or authorities as may be necessary in the opinion of counsel to SM&A and counsel
to the Holder or Holders of Registrable Securities to enable the Holder or
Holders thereof to consummate the disposition of such Registrable Securities;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement;
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(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and at
the request of any such Holder promptly prepare and furnish to it a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(g) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing SM&A for the purposes of such registration, in form and substance
as is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of SM&A, in form and substance as
is customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities;
(h) use its best efforts (a) to list all Registrable Securities covered
by such registration statement on such national securities exchange on which
Registrable Securities of the same class and, if applicable, series covered by
such registration statement are then listed, if any, or on the National
Association of Securities Dealers Automated Quotation System, Inc. ("NASDAQ") if
the Registrable Securities are quoted on NASDAQ; and
(i) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its securities holders, as
soon as reasonably practicable and if required by law, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, and
promptly furnish to each such Holder of Registrable Securities a copy of any
amendment or supplement to such registration statement or prospectus.
5. Furnish Information.
It shall be a condition precedent to the obligations of SM&A to take any
action pursuant to this Agreement with respect to the Registrable Securities of
any selling Holder that such Holder shall furnish to SM&A such information
regarding itself, the Registrable Securities held
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by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
6. Expenses of Demand Registration.
All expenses other than underwriting discounts and commissions incurred
in connection with registrations, filings or qualifications pursuant to Section
2, including, without limitation, all registration, filing and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for SM&A,
and the reasonable fees and disbursements of one counsel for the selling Holders
(as selected by a majority in interest of the selling Holders) shall be borne by
SM&A; provided, however, that SM&A shall not be required to pay for any expenses
of any registration proceeding begun pursuant to Section 2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all Holders
participating in such registration shall bear such expenses), unless the Holders
of a majority of the Registrable Securities agree to forfeit one of their demand
registration rights provided under Section 2. Notwithstanding the foregoing,
however, if at the time of the withdrawal, the Holders of the Registration
Securities have learned of a material adverse change in the condition, business
or prospectus of SM&A from that known to the Holders of the Registerable
Securities at the time of their request, of which SM&A had knowledge at the time
of the request, the Holders of such Registrable Securities shall not be required
to pay any of said expenses or to forfeit the right to one demand registration.
7. Expenses of SM&A Registration.
SM&A shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 3 for each Holder (which right may be
assigned as provided in Section 12), including, without limitation, all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the selling Holders selected by a majority in interest of the
selling Holders, but excluding underwriting discounts and commissions relating
to Registrable Securities.
8. Underwriting Requirements.
In connection with any offering involving an underwriting of shares of
SM&A's capital stock, SM&A shall not be required under Section 3 to include any
of the Holders' securities in such underwriting unless they accept the terms of
the underwriting as agreed upon between SM&A and the underwriters selected by it
(or by other persons entitled to select the underwriters) (provided, however,
that each Holder shall be required to make only those representations (if any)
as would be customary for a holder of a similar percentage of similar securities
unless required by such underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by SM&A. If the total amount of securities, including
Registrable Securities, requested to be included in such offering exceeds the
amount of securities sold other than by SM&A that the
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underwriters determine in their sole discretion is compatible with the success
of the offering, then SM&A shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (provided such participation is, on a percentage basis, equal to
the proportion of SM&A Stock held by SM&A shareholders existing prior to the
Merger which is included in such underwriting to that which such SM&A
shareholders requested to be included in such underwriting).
9. Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification.
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, SM&A will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), and their respective directors, officers, partners, shareholders,
employees, agents, representatives and affiliates, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by SM&A of the Act, the 1934 Act, any state securities law or any rule
or regulation promulgated under the Act, the 1934 Act or any state securities
law; and SM&A will pay to each such Holder, underwriter or controlling person,
and his respective directors, officers, partners, shareholders, employees,
agents, representatives and affiliates as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 10(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of SM&A (which consent shall not be
unreasonably withheld), nor shall SM&A be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
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(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless SM&A, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls SM&A within
the meaning of the Act, any underwriter, any other Holder selling securities in
such registration statement and any controlling person of any such underwriter
or other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this Section 10(b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this Section 10(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 10, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified parties
which may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding or if the indemnifying party
shall fail to assume responsibility for such defense. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if actually prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 10.
No indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as a term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation or which requires action other than the payment of money by the
indemnifying party.
(d) If the indemnification provided for in this Section 10 shall for any
reason be held by a court of competent jurisdiction to be unavailable to an
indemnified party under subparagraph (a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under subparagraph (a) or (b)
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hereof, the indemnified party and the indemnifying party under subparagraph (a)
or (b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of SM&A and the Holders of Registrable Securities
covered by the registration statement in connection with the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations (the
relative fault of SM&A and such Holders to be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact related to
information supplied by SM&A or such Holders and the parties' relative intent,
knowledge access to information and opportunity to correct or prevent such
statement or omission) or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by SM&A and such Holders from the
offering of the securities covered by such registration statement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Such Holders' obligations to contribute as
provided in this subparagraph (d) are several in proportion to the relative
value of their respective Registrable Securities covered by such registration
statement and not joint. In addition, no person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such person's consent, which consent shall not be unreasonably
withheld or delayed.
(e) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 10 (with appropriate modifications) shall
be given by SM&A and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under any federal or
state law, rule or regulation of any governmental authority other than the Act.
(f) The indemnification and contribution required by this Section 10
shall be made by prompt periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(g) The obligations of SM&A and Holders under this Section 10 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
11. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of SM&A to the public without
registration or pursuant to a registration on Form S-3, SM&A agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
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(b) take such action as is necessary to enable the Holders to utilize
Form S-3 for the sale of their Registrable Securities, such action to be taken
as soon as ordinarily required after the end of the fiscal year in which the
first registration statement filed by SM&A for the offering of its Common Stock
to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other documents
required of SM&A under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by SM&A that it has
complied with the reporting requirements of SEC Rule 144, the Act and the 1934
Act, or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the
most recent annual or quarterly report of SM&A and such other reports and
documents so filed by SM&A, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
12. Assignment of Registration Rights.
The rights to cause SM&A to register Registrable Securities pursuant to
this Agreement may be assigned (but only with all related obligations) by a
Holder to a transferee or assignee of such securities who, after such assignment
or transfer, holds at least shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided SM&A is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. For the purposes of determining the number of shares
of Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; provided that all such assignees and transferees who would not
qualify individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Agreement.
13. Amendment of Registration Rights.
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of SM&A and the
holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and SM&A.
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14. Termination of Registration Rights.
No Holder shall be entitled to exercise any right provided for in this
Agreement after such time as the Holder would be able to dispose of its
Registrable Securities pursuant to SEC Rule 144.
15. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of California as applied to agreements among California residents entered
into and to be performed entirely within California without giving effect to
conflicts of law principles.
16. Entire Agreement.
This Agreement represents the entire agreement between and among the SAC
Shareholders and SM&A with respect to the subject matter hereof and supersedes
any prior oral or written agreements concerning the same.
17. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notices.
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or upon deposit with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
19. Successors and Assigns.
Subject to the limitations set forth in Section 12 hereof, this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
SM&A: XXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Its: Chief Operating Officer
Address:
____________________________________
____________________________________
____________________________________
SAC SHAREHOLDERS:
By: /s/ XXXXXXX X. X. HEE
---------------------------------
Xxxxxxx X. X. Hee
---------------------------------
(Print name and title)
Address:
____________________________________
____________________________________
____________________________________
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Xxxxx X. Xxxxxxx
---------------------------------
(Print name and title)
Address:
____________________________________
____________________________________
____________________________________
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SHAREHOLDERS: /s/ XXXXXXX X.X. HEE
------------------------------------
XXXXXXX X.X. HEE, as attorney-in-
fact for the Shareholders identified
on Schedule 1.0 hereto
____________________________________
____________________________________
____________________________________
____________________________________
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