REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
EXECUTION
ORIGINAL
This
Registration Rights Agreement (the “Agreement”)
is
made and entered into as of September 21, 2005, by and between FieldCentrix,
Inc., a California corporation (“FieldCentrix”)
and
Astea International, Inc., a Delaware corporation (“Astea”).
W
I T N E S S E T H:
WHEREAS,
this Agreement is made in connection with the acquisition by Astea of
substantially all of the assets of FieldCentrix, pursuant to an Asset Purchase
Agreement dated September 21, 2005 (the “Asset
Purchase Agreement”),
under
which a wholly owned subsidiary of Astea purchased substantially all of the
assets of Holder (the “Asset
Purchase”);
WHEREAS,
as a result of the Asset Purchase, FieldCentrix received 421,106 shares of
Astea’s common stock, par value $.01 per share (“Common
Stock”);
WHEREAS,
as used herein the term “Registrable
Shares”
shall
mean the Astea Shares (as such term is defined in the Asset Purchase Agreement)
received by FieldCentrix upon the original issuance thereof in the Asset
Purchase and any other shares of capital stock of Astea issued in respect
of any
such shares of Common Stock as a result of stock splits, stock dividends,
reclassification, exchange offer, recapitalizations, mergers, consolidations
or
similar events; and
WHEREAS,
as used herein the term “Holders”
shall
mean FieldCentrix and any Permitted Transferee.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements set forth herein, the parties hereto, intending to be legally
bound,
agree as follows:
1. Registration
Rights.
Subject
in each case to the obligations of Holders under Section 3:
(a) Piggyback
Registrations.
(i) If
at any
time prior to September 21, 2007, Astea shall file with the United States
Securities and Exchange Commission (the “SEC”)
a
registration statement of Astea under the Securities Act of 1933, as amended
(the “1933
Act”)
(collectively, a “Piggyback Registration
Statement”),
relating to an offering for its own account or the account of others under
the
1933 Act of any of its equity securities (a “Piggyback
Registration”),
Astea
shall send to each Holder a written notice of such determination and, if
within
fifteen (15) days after the giving of such notice, one or more Holders shall
so
request in writing (the “Participating
Holders”),
Astea
shall include in such Piggyback Registration Statement all of the Registrable
Shares of such Participating Holders, except that if, in connection with
any
underwritten Piggyback Registration for the account of Astea, the managing
underwriter(s) thereof shall impose a limitation on the number of shares
of
Common Stock which may be included in a Piggyback Registration Statement
because, in such underwriter(s)’ judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution, then Astea
shall
be obligated to include in such Piggyback Registration Statement only such
limited portion of the Registrable Shares as the underwriter(s) shall permit,
if
any. Any exclusion of Registrable Shares shall be made pro rata among
Participating Holders in proportion to the number of Registrable Shares of
the
Participating Holders; provided, however, Astea shall not exclude any
Registrable Shares unless Astea has first excluded all outstanding securities,
the holders of which are not entitled to inclusion of such securities in
such
Piggyback Registration Statement; and provided, further, however, that, after
giving effect to the immediately preceding proviso, any exclusion of Registrable
Shares shall be made pro rata with holders of other securities having the
right
to include such securities in the Piggyback Registration Statement other
than
holders of securities entitled to inclusion of their securities in such
Piggyback Registration Statement by reason of demand registration rights.
If a
Piggyback Registration in connection with which Holders are entitled to
registration under this Section 1(a)(i) is an underwritten Piggyback
Registration, then Holders shall, unless otherwise agreed by Astea, offer
and
sell such Registrable Shares in an underwritten offering using the same
underwriter(s) and, subject to the provisions of this Agreement, on the same
terms and conditions as other shares of Common Stock included in such
underwritten offering.
(ii) Notwithstanding
any other provision of this Agreement, this Section 1(a) shall not apply
to, and
Holders’ right to participate in a Piggyback Registration shall not be triggered
by, the filing of a Piggyback Registration Statement (A) covering shares
of
Common Stock issued pursuant to an employee benefit plan, (B) on Form S-4
(or
successor form) for the purpose of offering such securities to another business
entity or the shareholders of such entity in connection with the acquisition
of
assets or shares of capital stock, respectively, of such entity, or (C) in
connection with a resale shelf registration filed in connection with an
acquisition, reorganization, recapitalization, merger, consolidation or similar
transaction involving Astea.
(iii) If
any
Piggyback Registration was initiated by Astea to effect, in whole or in part,
a
primary public offering of its securities and, if at any time after giving
written notice of its intention to so register securities and before the
effectiveness of the Piggyback Registration Statement filed in connection
with
such Piggyback Registration, Astea determines for any reason either not to
effect such Piggyback Registration or to delay such Piggyback Registration,
Astea may, at its election, by prior written notice to each Holder: (i) in
the
case of a determination not to effect such Piggyback Registration, relieve
itself of its obligation set forth above in Section 1(a)(i) to register the
Registrable Shares in connection with such Piggyback Registration; or (ii)
in
the case of a determination to postpone such Piggyback Registration, delay
the
Piggyback Registration of the Registrable Shares for the same period as the
Piggyback Registration of Astea’s securities is postponed.
(iv) Notwithstanding
any other provision of this Agreement, Astea shall not be required to effect
a
Piggyback Registration pursuant to Section 1(a)(i), or file any post-effective
amendment to such a Piggyback Registration: (A) if a Piggyback Registration,
or
any post-effective amendment to such Piggyback Registration, requires, under
applicable statutes and rules, a special audit (other than a normal fiscal
year-end audit) of the financial statements of Astea, unless Participating
Holders agree to pay the fees and expenses of accountants incurred in connection
with the special audit and which would otherwise not be incurred but for
the
participation of Participating Holders in such Piggyback Registration; or
(B)
Astea has not received from Participating Holders all information Astea has
requested pursuant to Section 3.
(b) Demand
Registrations.
(i) If
at any
time from September 21, 2006 through September 20, 2007 (the “Demand
Period”)
it is
determined by counsel for FieldCentrix after due inquiry that a Permitted
Transferee (as defined below) may not tack the holding period which it has
held
Registrable Shares to the period FieldCentrix held such Registrable Shares
for
purposes of Rule 144(d) under the 1933 Act, one or more Permitted Transferees
(the “Requesting
Holders”)
may
require Astea to register (the “Demand
Registration”,
and
collectively with a Piggyback Registration, a “Registration”)
such
Requesting Holders’ Registrable Shares (in such amounts as limited by Section
1(b)(iii) below) on Form S-3 (or any similar form promulgated by the SEC)
(the
“Demand
Registration Statement”
and
collectively with a Piggyback Registration Statement, the “Registration
Statements”).
Each
request for a Demand Registration shall be in writing and shall specify the
number of Registrable Shares requested to be registered and the proposed
underwriter, if any. In the event Astea receives a request for Demand
Registration from one or more Requesting Holders, Astea shall: (i) within
ten
(10) days after receipt of any such request, give written notice of such
requested registration to all other Permitted Transferees (if any) of
Registrable Shares; (ii) as soon as practicable, but no later than ninety
(90)
days thereafter, use its commercially reasonable efforts to file with the
SEC
the Demand Registration Statement under the 1933 Act; and (iii) include in
such
registration all Registrable Shares (subject to the limitations set forth
below
in Section 1(b)(iii)) with respect to which Astea has received written requests
for inclusion therein from Requesting Holders and from the other Permitted
Transferees within twenty (20) days after the mailing or delivery of Astea’s
notice of such requested Demand Registration (such other Permitted Transferees
and the Requesting Holders collectively referred to as the “Demand
Participating Holders”),
except that if the Demand Registration is an underwritten offering and the
managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in a Demand Registration Statement
because, in such underwriter(s)’ judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution, then Astea
shall
be obligated to include in such Demand Registration Statement only such limited
portion of the Registrable Shares as the underwriter(s) shall permit, if
any.
Any exclusion of Registrable Shares shall be made pro rata among the Demand
Participating Holders in proportion to the number of Registrable Shares of
the
Demand Participating Holders requested to be included in such Demand
Registration; provided, however, Astea shall not exclude any Registrable
Shares
unless Astea has first excluded all outstanding securities, the holders of
which
are not entitled to inclusion of such securities in such Demand Registration
Statement.
(ii) The
Permitted Transferees of the Registrable Shares then outstanding shall be
entitled to request one (1) Demand Registration during the Demand
Period.
(iii) The
number of Registrable Shares each Demand Participating Holder shall be entitled
to request inclusion in the Demand Registration shall be subject to the product
of (i) the then current volume limitations of Rule 144(e) under the 1933
Act for
Astea’s Common Stock and (ii) four (4).
(iv) Each
sale
of Registrable Securities by a Demand Participating Holder under the Demand
Registration Statement shall be subject to the then current volume limitations
of Rule 144(e) under the 1933 Act for Astea’s Common Stock. Astea shall be
permitted to direct its transfer agent to place stop transfer instructions
upon
the stock certificates representing the Registrable Securities reflecting
the
sale restrictions in the immediately preceding sentence. In furtherance of
the
foregoing, Astea and its transfer agent are hereby authorized to decline
to make
any transfer of Registrable Securities if such transfer would constitute
a
violation or breach of the first sentence of this paragraph.
(v) If
Astea
furnishes to the Demand Participating Holders a certificate signed by the
President of Astea that, in the good faith judgment of the Board of Directors
of
Astea, it is seriously detrimental to Astea and its stockholders for such
Demand
Registration Statement to be filed, then Astea may postpone upon one occasion
in
any three hundred sixty-five (365) day period for up to ninety (90) days
the
filing of the Demand Registration Statement.
(vi) Astea
will use commercially reasonable efforts to maintain the effectiveness of
the
Demand Registration Statement until the earlier of (x) the date on which
all of
the Registrable Shares included in the Demand Registration Statement have
been
sold by the Demand Participating Holders, and (y) the date on which all the
Registrable Shares included in the Demand Registration Statement may be
immediately sold by the Demand Participating Holders without registration
and
without restriction as to the number of Registrable Shares to be sold, pursuant
to Rule 144 or otherwise (excluding for this purpose any Registrable Shares
held
by affiliates of Astea).
2. Astea’s
Obligations.
In
connection with Astea’s obligation to effect a Registration, it
shall:
(a) Promptly
prepare and file with the SEC a Registration Statement with respect to the
shares to be included in such Registration (the “Shares”)
and
use its commercially reasonable efforts to cause the Registration Statement
to
become and remain effective as soon as reasonably practicable
thereafter;
(b) Prepare
and file such amendments to the Registration Statement and supplements to
the
prospectus contained therein as may be necessary to keep the Registration
Statement effective as required herein;
(c) Furnish
to Participating Holders, Demand Participating Holders and any underwriters
of
the Shares such reasonable number of copies of the Registration Statement
and
any amendments thereto, any related prospectus and supplements thereto, all
correspondence to and from the SEC, including but not limited to SEC comment
letters and responses thereto, and such other documents as such underwriters
may
reasonably request in order to facilitate the public offering of the
Shares;
(d) Register
or qualify the Shares under such state securities or “blue sky” laws of such
jurisdictions as Participating Holders and Demand Participating Holders may
reasonably (in light of a reasonable plan of distribution) request as soon
as
reasonably practicable, but in any event within twenty (20) days following
the
original filing of the Registration Statement; provided, that Astea shall
not be
required to take any action in any jurisdiction which would require it to
qualify to do business in such jurisdiction or otherwise subject it to service
of process, except with respect to the offering and sale of the
Shares;
(e) Notify
Participating Holders and Demand Participating Holders promptly after it
shall
receive notice thereof of the time when the Registration Statement has become
effective or a supplement to any prospectus forming a part of the Registration
Statement has been filed;
(f) Notify
Participating Holders and Demand Participating Holders promptly of any request
by the SEC or applicable state securities agency for the amending or
supplementing of the Registration Statement or prospectus or for additional
information;
(g) Prepare
and promptly file with the SEC and promptly notify Participating Holders
and
Demand Participating Holders of the filing of such amendment or supplement
to
the Registration Statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to the
Shares
is required to be delivered under the 1933 Act, any event shall have occurred,
the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state
any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(h) In
case
any Participating Holder, Demand Participating Holder or any underwriter(s)
are
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the 1933 Act, Astea will prepare and
file
such supplements or amendments to the Registration Statement and such prospectus
or prospectuses as may be necessary to permit compliance with the requirements
of the 1933 Act as soon as reasonably practicable thereafter;
(i) Advise
Participating Holders and Demand Participating Holders, promptly after it
shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
suspending the effectiveness of the Registration Statement or the initiation
or
threatening of any proceeding for that purpose and promptly use its best
efforts
to prevent the issuance of any stop order or to obtain its withdrawal if
such
stop order should be issued;
(j) Permit
Participating Holders and Demand Participating Holders to review the
Registration Statement, any amendments thereto, and any related prospectus(es)
and supplements thereto a reasonable amount of time (not to exceed seven
(7)
days) prior to their filing with the SEC, and will not file any such document
in
a form to which any Participating Holder or Demand Participating Holder shall
reasonably have objected in writing on the grounds that such document does
not
comply in all material respects with the requirements of the 1933 Act or
the
rules and regulations thereunder; and
(k) At
the
request of any Participating Holder or Demand Participating Holder (1) obtain
and furnish on the effective date of the Registration Statement or, if such
Registration includes an underwritten public offering, at the closing provided
for in the underwriting agreement, an opinion, dated such date, of the counsel
representing Astea for the purposes of such Registration, addressed to the
underwriter(s), if any, and to any Participating Holder or Demand Participating
Holder making such request, which shall contain such statements as the
underwriter(s) may reasonably request, or, if the offering is not underwritten,
shall state that the Registration Statement has become effective under the
1933
Act and that (i) to the best of such counsel’s knowledge, no stop order
suspending the effectiveness thereof has been issued and no proceedings for
that
purpose have been instituted or are pending or contemplated under the 1933
Act;
(ii)
the
Registration Statement, related prospectus, and each amendment or supplement
thereto comply as to form in all material respects with the requirements
of the
1933 Act and applicable rules and regulations of the SEC thereunder (except
that
such counsel need express no opinion as to financial statements, financial
information, or financial schedules contained therein); and (iii) such counsel
has no reason to believe that either the Registration Statement or the
prospectus or any amendment or supplement thereto contains any 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; and (iv)
the
opinion of counsel shall additionally cover such legal matters with respect
to
such Registration and with respect to which such opinion is being given as
such
requesting Participating Holder or Demand Participating Holder may reasonably
request; and (2) obtain and furnish letters dated on such effective date,
and
such closing date, if any, from the independent certified public accountants
of
Astea, addressed to the underwriter(s), if any, and to Participating Holders
and
Demand Participating Holders making such request, stating that they are
independent certified public accountants within the meaning of the 1933 Act
and
dealing with such matters as the underwriter(s) may request, or, if the offering
is not underwritten, stating that in the opinion of such accountants the
financial statements and other financial data pertaining to Astea included
in
the Registration Statement or the prospectus or any amendment or supplements
thereto comply in all material respects with the applicable accounting
requirements of the 1933 Act; such letter from the independent certified
public
accountants shall additionally cover such other financial matters, including
information as to the period ending not more than five (5) business days
prior
to the date of such letter, with respect to the Registration Statement and
prospectus, as the requesting Participating Holders and Demand Participating
Holders may reasonably request.
3. Holder’
Obligations.
In
connection with a Registration of the Registrable Shares, Holders shall have
the
following obligations:
(a) It
shall
be a condition precedent to the obligations of Astea to complete a Registration
pursuant to this Agreement with respect to the Registrable Shares of a
particular Participating Holder or Demand Participating Holder that such
Participating Holder or Demand Participating Holder shall furnish to Astea
such
information regarding itself, the Registrable Shares held by it and the intended
method of disposition of the Registrable Shares held by it as shall be
reasonably required to effect a Registration of such Registrable Shares and
shall execute such documents in connection with such Registration as Astea
may
reasonably request. At least ten (10) business days prior to the first
anticipated filing date of a Registration Statement, Astea shall notify each
Participating Holder or Demand Participating Holder of the information Astea
requires from each such Participating Holder or Demand Participating Holder
if
such Participating Holder or Demand Participating Holder elects to have any
of
such Participating Holder’s or such Demand Participating Holder’s Registrable
Shares included in such Registration Statement.
(b) Each
Participating Holder or Demand Participating Holder, by such Participating
Holder’s or such Demand Participating Holder’s acceptance of the Registrable
Shares, agrees to cooperate with Astea as reasonably requested by Astea in
connection with the preparation and filing of a Registration Statement
hereunder, unless such Participating Holder or Demand Participating Holder
has
notified Astea in writing of such Participating Holder’s or such Demand
Participating Holder’s election to exclude all of such Participating Holder’s or
such Demand Participating Holder’s Registrable Shares from such Registration
Statement.
(c) Each
Participating Holder or Demand Participating Holder agrees that, upon receipt
of
any notice from Astea of the happening of any event of the kind described
in
Section 2(g), such Participating Holder or Demand Participating Holder will
immediately discontinue disposition of Registrable Shares pursuant to the
Registration Statement covering such Registrable Shares until such Participating
Holder’s or such Demand Participating Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2(g) and, if so
directed by Astea, such Participating Holder or such Demand Participating
Holder
shall deliver to Astea (at the expense of Astea) or destroy (and deliver
to
Astea a certificate of destruction) all copies in such Participating Holder’s or
such Demand Participating Holder’s possession, of the prospectus covering such
Registrable Shares current at the time of receipt of such notice.
(d) No
Holder
may participate in any underwritten Registration hereunder unless such Holder
(i) agrees to sell such Holder’s Registrable Shares on the basis provided in any
underwriting arrangements in usual and customary form entered into by Astea;
(ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms
of such underwriting arrangements; and (iii) agrees to pay its pro rata share
of
all underwriting discounts and commissions and any expenses in excess of
those
payable by Astea pursuant to Section 4 below.
(e) Each
Holder agrees to comply with all applicable laws and regulations in connection
with any sale, transfer or other disposition of Registrable Shares.
4. Expenses.
Subject
to the limitations contained herein, Astea shall pay all expenses incident
to
each Piggyback Registration of the Registrable Shares under Section 1(a)(i),
including, without limitation, all registration, filing and NASD fees, all
fees
and expenses of complying with state securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for Astea and of its independent public
accountants, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and compliance, premiums
and
other costs of policies of insurance purchased by Astea at its option against
liabilities arising out of the public offering of such Registrable Shares,
but
excluding discounts, spreads and commissions and fees and expenses of selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the Registrable Shares, transfer taxes, fees and
disbursements of counsel for any Holder and other selling expenses, if any.
Each
Participating Holder in a particular Registration shall bear their pro rata
share of the underwriting discounts, spreads and commissions of such
Registration and shall bear any costs, fees and disbursements of accountants
and
counsel retained by them for such Registration; provided, however, that if
any
cost or expense is attributable solely to one particular Participating Holder
or
Demand Participating Holder or group of Participating Holders or Demand
Participating Holders in a particular Registration and does not constitute
a
normal cost or expense of such Registration, such cost or expense shall be
allocated to and borne by that Participating Holder(s) or Demand Participating
Holder(s), as the case may be. The Demand Participating Holders shall pay
all
expenses incident to each Demand Registration of the Registrable Shares under
Section 1(b)(i).
5. Indemnification.
(a) By
Astea.
Subject
to the conditions set forth below, in connection with any Registration of
securities pursuant to Section 1 above, Astea agrees to indemnify and hold
harmless Participating Holders, Demand Participating Holders and each person,
if
any, who controls Participating Holders and Demand Participating Holders
within
the meaning of Section 15 of the 1933 Act or Section 20 of the Securities
Act of
1934, as amended (“1934
Act”),
against any and all loss, claim, damage, and expense whatsoever arising out
of
or based upon (including but not limited to any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending any litigation,
commenced or threatened, or any claim whatsoever based upon) any untrue or
alleged untrue statement of a material fact contained in any preliminary
prospectus (if used prior to the effective date of a Registration Statement),
any Registration Statement or amendment thereto, any prospectus (as from
time to
time amended and supplemented), or any application or other document executed
by
Astea or based upon written information furnished by Astea filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof
or
the omission or alleged omission therefrom of a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
or
any other violation of applicable federal or state statutory or regulatory
requirements or limitations related to action or inaction by Astea in the
course
of preparing, filing, or implementing a Registration; provided, however,
that
Astea shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Statement, any
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to Astea by or on behalf of any Participating Holder or Demand Participating
Holder; and provided further, that Astea shall not be liable to any person
in
any such case to the extent that any such loss, claim, damage, liability
(or
action or proceeding in respect thereof) or expense arises out of such person’s
failure to send or give a copy of the final prospectus, as the same may be
then
supplemented or amended, to the person asserting an untrue statement or omission
at or prior to written confirmation of the sale of the Registrable Shares
to
such person if such statement or omission was corrected in such final prospectus
as amended or supplemented.
(b) By
Holders.
Each
Participating Holder and Demand Participating Holder in any Registration
pursuant to Section 1 above severally and individually agrees to indemnify
and
hold harmless Astea and its officers, directors and agents and each other
person, if any, who controls Astea within the meaning of Section 15 of the
1933
Act or Section 20 of the 1934 Act against any and all such losses, liabilities,
claims, damages, and expenses of a type which are indemnified against by
Astea
under Section 5(a) hereof and which arise from such Participating Holder’s or
such Demand Participating Holder’s statements or omissions, if any, made (or in
settlements of any litigation effected with the written consent of such
Participating Holder or such Demand Participating Holder, alleged to have
been
made) in any preliminary prospectus, any Registration Statement, or prospectus
or any amendment or supplement thereof or any application or other document
in
reliance upon, and in conformity with, written information furnished in respect
of such Participating Holder or such Demand Participating Holder by or on
behalf
of such Participating Holder or such Demand Participating Holder expressly
for
use in any preliminary prospectus, any Registration Statement, or prospectus
or
any amendment or supplement thereof or in any such application or other
document; provided however, that no Participating Holder or Demand Participating
Holder shall be liable under this Section 5(b) for an amount in excess of
the
net proceeds received by such Participating Holder or Demand Participating
Holder with respect to the Shares offered or sold pursuant to any Registration
hereunder.
(c) Conduct
of Indemnification Proceedings.
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant
to
Sections 5(a) or 5(b) hereof, such person (the “Indemnified
Party”)
shall
promptly notify the person from whom such indemnity may be sought (the
“Indemnifying
Party”)
in
writing and the Indemnifying Party, upon the request of the Indemnified Party,
shall retain counsel reasonably satisfactory to such Indemnified Party to
represent such Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the
fees
and expenses of such counsel shall be at the expense of such Indemnified
Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties as to any
such
proceeding (including any impleaded parties) include both the Indemnified
Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate
firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed
as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or
if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any
loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
(d) Contribution.
(i) If
the
indemnification provided for in Sections 5(a) or 5(b) hereof is unavailable
or
insufficient to hold harmless an Indemnified Party, to the extent provided
therein, then each Indemnifying Party shall contribute to the amount paid
or
payable by such Indemnified Party as a result of the losses, claims, damages,
or
liabilities referred to in Sections 5(a) or 5(b) hereof, (i) in such proportion
as is appropriate to reflect the relative benefits received by Astea or
Participating Holders and Demand Participating Holders from the offering
of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, then in such proportion as is appropriate to reflect not
only
the relative benefits referred to in clause (i) above but also the relative
fault of Astea and Participating Holders and Demand Participating Holders
in
connection with the statements or omissions that resulted in such losses,
claims, damages, or liabilities, as well as any other relevant equitable
considerations. The relative fault 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 Astea or Participating Holders and Demand Participating
Holders and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such untrue statement or omission. Astea
and
Participating Holders and Demand Participating Holders agree that it would
not
be just and equitable if contributions pursuant to this Section 5(d)(i) were
to
be determined by pro rata allocation or by any other method of allocation
which
does not take account of the equitable considerations referred to in the
first
sentence of this Section 5(d)(i). The amount paid by an Indemnified Party
as a
result of the losses, claims, damages, or liabilities referred to in the
first
sentence of this Section 5(d)(i) shall be deemed to include any reasonable
legal
or other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending against any action or claim which is the
subject
of this Section 5(d)(i). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
(ii) The
obligations of Astea and Participating Holders and Demand Participating Holders
under this Section 5(d) shall be in addition to any liability which Astea
and
Participating Holders and Demand Participating Holders may otherwise have
and
shall extend upon the same terms and conditions to each director of Astea
or a
Participating Holder or Demand Participating Holder (including any person
who,
with his consent, is named in a Registration Statement as a person to become
a
director of Astea), to each officer of Astea who has signed a Registration
Statement, and to each person, if any, who controls Astea or a Participating
Holder or Demand Participating Holder within the meaning of the 1933 Act
or the
1934 Act.
(e) Indemnification
Payment.
The
indemnification required by this Section 5 shall be made by 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.
6. Rules
144 and 144A.
Astea
agrees to file the reports required to be filed by it under the 1933 Act
and the
1934 Act and the rules and regulations adopted by the SEC thereunder, and
will
use its reasonable efforts to take such further action as any Holder may
reasonably deem to be necessary, all to the extent required from time to
time to
enable such Holder to sell Registrable Shares without registration under
the
1933 Act within the limitation of the exemptions provided by (i) Rule 144
and
Rule 144A under the 1933 Act, as such Rules may be amended from time to time
or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, Astea (i) will deliver to such Holder a written statement
as to whether it has complied with such information and requirements and
(ii)
will remove restrictive legends on certificates and stop-order on its transfer
books if, in the reasonable judgment of Astea’s counsel or in the opinion of
counsel for the Holder, such legend is no longer necessitated under the 1933
Act.
7. Amendments
and Waivers.
This
Agreement may be amended and each party may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, either
prospectively or retroactively, only with the written consent of Astea and
the
Holders owning a majority of the Registrable Shares.
8. Notices.
All
notices that are required or permitted hereunder shall be in writing and
shall
be sufficient if personally delivered or sent by mail, facsimile message
or by a
nationally recognized overnight delivery courier. Any notices shall be deemed
given upon the earlier of the date when received at, or the third day after
the
date when sent by registered or certified mail or the day after the date
when
sent by facsimile or overnight delivery courier to, the address or fax number
set forth below, unless such address or fax number is changed by notice to
the
other party hereto:
If
to
Astea:
000
Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxx Xxxxx, Vice President and General Counsel
Fax
No.:
(000) 000-0000
and
with
a required copy to:
Xxxxxx
Xxxxxxxx LLP
3000
Two
Xxxxx Square
00xx
xxx Xxxx
Xxxxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxx, Esq.
Fax
No.:
(000) 000-0000
If
to any
Holder:
c/o
FieldCentrix, Inc.
8
Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attn:
President
Fax
No.:
(000) 000-0000
and
with
a required copy to:
Xxxxxxxxx
Xxxxx Xxxxxxx & Xxxxx
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx
Xxxxx, XX 00000-0000
Attn:
X.X. Xxxxxx, Esq.
Fax
No:
(000) 000-0000
9. Assignment.
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors. The registration rights
set forth herein may be assigned, in whole or in part, to any transferee
of
Registrable Shares, which transferee, upon registration on Astea’s or its
transfer agent's books and records as a holder of record of Registrable Shares,
shall be considered thereafter to be a Holder and shall be bound by all
obligations and limitations of this Agreement, provided, however that assignment
will only be available if (i) such transfer may otherwise be effected in
accordance with applicable securities laws; (ii) such transferee executes
and
delivers to Astea a counterpart to this Agreement, the form of which is attached
hereto as Exhibit
A;
and
(iii) such transferee received Registrable Shares from FieldCentrix in
connection with the dissolution and liquidation of FieldCentrix (a "Permitted
Transferee").
Promptly after an assignment to a Permitted Transferee, the Company shall
file
any required prospectus supplement reflecting such transfer and naming the
Permitted Transferee as a selling stockholder therein, if applicable, enabling
the Permitted Transferee to sell all of the Registrable Shares required by
it.
10. Other
Indemnification.
In
addition to any other indemnification contained herein, Astea agrees to
indemnify Holders, and Holders, severally and not jointly, agree to indemnify
Astea, against any actual loss, damage, or expense (including but not limited
to
reasonable attorneys’ fees) (“Other
Damages”),
incurred or sustained by Holders as a result of any breach of this Agreement
by
Astea, on the one hand, and by Astea as a result of any breach of this Agreement
by one or more Holders, on the other hand. The party seeking indemnification
hereunder agrees to give prompt notification to the party from whom
indemnification is sought of any claims for Other Damages or potential claims
for Other Damages; provided, however, that failure of the indemnified party
to
give such notification shall not relieve the indemnifying party of its indemnity
obligations hereunder unless such failure in fact materially prejudiced the
defense of any such claim.
11. Irreparable
Harm.
Astea
acknowledges that Holders will suffer irreparable and substantial injury
in the
event Astea violates or breaches its obligations under this Agreement and
that
any damages which would be suffered by Holders would be severe and difficult
to
ascertain. Holders acknowledge that Astea will suffer irreparable and
substantial injury in the event any Holder violates or breaches any of its
obligations under this Agreement and that any damages which would be suffered
by
Astea would be severe and difficult to ascertain. All parties hereby waive
the
claim or defense that an adequate remedy at law for such breach exists or
that
irreparable injury shall not occur. Therefore, it is hereby agreed that upon
any
breach or threatened breach of any of the covenants or agreements contained
herein, the aggrieved party shall be entitled, in addition to any other remedies
available, to an order for specific performance or a temporary restraining
order
or preliminary or permanent injunction, as the case may be, to compel compliance
with or restrain the violation, breach or threatened breach of any of the
terms
of such covenants or agreements. The foregoing remedies for breach of this
Agreement are cumulative and not exclusive of any other remedies the parties
may
have at law or in equity in the event of breach.
12. No
Defense.
The
covenants set forth herein are of the essence of this Agreement. They shall
be
construed as independent of any other provisions of this Agreement. The
existence of any claim or cause of action of any Holder against Astea or
Astea
against any Holder whether predicated on this Agreement or not, shall not
constitute a defense to the enforcement by a party of the covenants and
agreements contained herein.
13. Parties
Benefited.
Nothing
in this Agreement, express or implied, is intended, except as set forth herein,
to confer upon any third party any rights, remedies, obligations or
liabilities.
14. Descriptive
Headings.
The
descriptive headings of the several sections and paragraphs of this Agreement
are inserted for reference only and shall not limit or otherwise affect the
meaning hereof.
15. Future
Changes in Registration Statements.
In the
event that the Registration requirements under the 1933 Act are amended or
eliminated, this Agreement shall be deemed amended to the extent necessary
to
reflect such changes and the intent of the parties hereto with respect to
the
benefits and obligations of the parties, and in such connection, Astea shall
use
reasonable efforts to provide Holders equivalent benefits to those provided
under this Agreement.
16. Governing
Law.
The
validity of this Agreement and all matters relating to its interpretation
and
performance shall be interpreted in accordance with the laws of the State
of
Delaware applicable to contracts made and fully performed therein, but without
regard to principles of conflicts of law.
17. Counterparts.
This
Agreement may be executed in two or more counterparts and by facsimile, each
of
which shall be binding as of the date first written above, and all of which
shall constitute one and the same instrument. Each such copy shall be deemed
an
original, and it shall not be necessary in making proof of this Agreement
to
produce or account for more than one such counterpart.
18. Entire
Agreement.
This
Agreement embodies the entire agreement and understanding of the parties
hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties, covenants or undertakings other than
those expressly set forth or referred to herein. This Agreement supersedes
all
prior agreements and understandings between the parties. The parties make
no
representations or warranties to each other, except as contained in this
Agreement, and any and all prior representations, warranties, assurances
and
promises made by any party or its representatives, whether verbally or in
writing, are deemed to have been merged into this Agreement, it being intended
that no such prior representations, warranties, assurances and promises shall
survive the execution and delivery of this Agreement.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to
be executed and delivered as of the date first above written.
|
FIELDCENTRIX,
INC.
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||
|
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
President
|
||
|
By:
|
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
|
||
|
Title:
Vice President & General
Counsel
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