EXHIBIT 10.12
UNVEIL TECHNOLOGIES, INC.
REGISTRATION RIGHTS AGREEMENT
AGREEMENT made as of the 7th day of March, 2001, by and among Unveil
Technologies, Inc., a Delaware corporation (the "Company") and each of
the persons listed on Schedule A hereto (the "Investors").
W I T N E S S E T H :
WHEREAS, certain Investors have purchased, and the Company has issued
to such Investors, the shares listed on Schedule A hereto, of the
Company's Common Stock, $.001 par value per share ("Common Stock");
WHEREAS, certain other Investors, as set forth on Schedule A
hereto, are acquiring an aggregate of up to 3,000,000 shares of the Company's
Series A Convertible Preferred Stock, par value $.001 per share ("Preferred
Stock"), which is convertible into the Company's Common Stock, pursuant to
the terms of a Series A Convertible Preferred Stock Purchase Agreement (the
"Purchase Agreement"), dated as of the date hereof, between the Company
and such Investors; and
WHEREAS, it is a condition to the obligations of the Investors under
the Purchase Agreement that this Agreement be executed by the parties hereto,
and the parties are willing to execute this Agreement and to be bound by the
provisions hereof;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement
with the following respective meanings:
"Affiliate" means (i) any Person directly or indirectly
controlling, controlled by or under common control with another Person; (ii) any
Person owning or controlling ten (10%) percent or more of the outstanding voting
securities of such other Person; (iii) any officer, director or partner of such
Person; and (iv) if such Person is an officer, director or partner, any such
company for which such Person acts in such capacity.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means and includes (a) the Company's Common
Stock, $.001 par value per share, as authorized on the date of this Agreement
and (b) any other securities into which or for which the securities described in
(a) above may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
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"Exchange Act" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"Holder" means any holder of Registrable Stock.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any natural person, partnership, corporation or
other legal entity.
"Preferred Stock" means the Series A Preferred Stock, $.001 par
value per share, of the Company.
"Registrable Stock" means (a) the Common Stock issued or
issuable upon conversion of the Preferred Stock, whether or not such Common
Stock is owned by any Investors, (b) all Common Stock now or hereafter owned by
any Investor which is acquired otherwise than upon conversion of the Preferred
Stock so long as it is held by any Investor or an Affiliate of any Investor, and
(c) any other shares of Common Stock issued in respect of such shares by way of
a stock dividend, or stock split or in connection with a combination of shares,
recapitalization, merger or consolidation or reorganization; provided,
however, that shares of Common Stock shall only be treated as Registrable
Stock if and for 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 so that all transfer restrictions and restrictive legends with respect
to such Common Stock are removed upon the consummation of such sale.
"Registration Statement" means a registration statement filed by
the Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement on Form X-0, Xxxx X-0, or
successor forms, or any registration statement covering only securities proposed
to be issued in exchange for securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, or any
successor Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Securities Act) thereunder,
all as the same shall be in effect at the time.
2. Required Registration.
(a) At any time (x) after the earlier of (i) the date 180 days
after any Registration Statement covering a public offering of
securities of the Company becomes effective and (ii) the fifth
anniversary of the date of this Agreement, and (y) prior to the date
three years after the earlier to occur of (i) or (ii) above, the Holder
or Holders of at least sixty six and two-thirds percent (66 2/3%) of
the voting power of all Registrable
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Stock then outstanding may by notice in writing to the Company request
the Company to register under the Securities Act all or any portion of
shares of Registrable Stock held by such requesting Holder or Holders
for sale in the manner specified in such notice; provided, however,
that the Company shall not be obligated to register any Common Stock
pursuant to this Section 2(a) unless the number of shares of
Registrable Stock requested to be included in such registration exceeds
fifty percent (50%) of all outstanding Registrable Stock or the
anticipated aggregate offering price of the shares of Registrable Stock
requested to be included in such registration exceeds $10,000,000.
Notwithstanding anything to the contrary contained herein, the Company
shall not be required to seek to cause a Registration Statement to
become effective pursuant to this Section 2 (including requests under
this Section 2(a) and Section 2(d)): (A) within 180 days after the
effective date of a Registration Statement filed by the Company,
provided that the Company shall use commercially reasonable efforts to
achieve effectiveness of a registration requested hereunder promptly
following such 180-day period if such request is made during such
180-day period; (B) if the Company shall furnish to holders a
certificate signed by an officer of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its shareholders for a registration
statement to be filed in the near future due to pending Company events,
or that it would require disclosure of material non-public information
relating to the Company which, in the reasonable opinion of the Board
of Directors, should not be disclosed, then the Company's obligation to
use all reasonable efforts to register, qualify or comply under this
Section 2 shall be deferred for a period not to exceed ninety (90) days
from the date of receipt of written request from such Holders;
provided, however, that the Company may not utilize this right more
than once in any twelve-month period.
(b) Following receipt of any notice given under this Section 2
by Holders of Registrable Stock requesting registration of a number of
shares of Registrable Stock that meets the magnitude requirements of
Section 2(a) hereof, the Company shall immediately notify all Holders
from whom notice has not been received that such registration is to be
effected and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of
disposition specified in such notice from requesting Holders, the
number of shares of Registrable Stock specified in such notice (and in
all notices received by the Company from other Holders) within twenty
(20) days after the giving of such notice by the Company to such other
Holders. The Holders of a majority of the shares of Registrable Stock
to be sold in such offering may designate the managing underwriter of
such offering, subject to the approval of the Company, which approval
shall not be unreasonably withheld or delayed. The Company shall be
obligated to register Registrable Stock pursuant to Section 2(a) hereof
on one occasion only, provided, however, that such
occasion shall be deemed to have occurred only when a Registration
Statement covering all shares of Registrable Stock specified in notices
received as aforesaid (less any reduction pursuant to section 2(c)
hereof) shall have become effective. A Registration Statement which
does not become effective solely by reason of the refusal of the
requesting Holders to proceed shall be deemed to have been effected by
the
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Company at the request of such requesting Holders unless such
requesting Holders shall have paid all of the Company's reasonable
expenses in connection with such registration.
(c) If the Registration Statement is to cover an underwritten
distribution and in the good faith judgment of the managing underwriter
of such public offering the inclusion of all of the Registrable Stock
requested for inclusion pursuant to this Section 2 would interfere with
the successful marketing of a smaller number of shares, then the number
of shares of Registrable Stock to be included in the Offering shall be
reduced to the level recommended by such managing underwriter, with the
participation in such offering to be pro rata among the Holders
requesting such registration, based upon the number of shares of
Registrable Stock requested to be registered by such Holders. The
Company shall be entitled to include in any Registration Statement
referred to in this Section 2, for sale in accordance with the method
of disposition specified by the requesting Holders, shares of Common
Stock to be sold by the Company for its own account, except as and to
the extent that, in the opinion of the managing underwriter, if any,
such inclusion would adversely affect the marketing of the Registrable
Stock to be sold. Except for registration statements on Form X-0, X-0
or any successor thereto, the Company will not file with the Commission
any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the
date of receipt of a notice from requesting Holders pursuant to this
Section 2 until the completion of the period of distribution of the
registration contemplated thereby.
3. Incidental Registration. Each time the Company shall
determine to file a Registration Statement in connection with the proposed offer
and sale for money of any of its Common Stock by it, except for the Company's
initial public offering if its Common Stock, the Company will give written
notice of its determination to all Holders. Upon the written request of a Holder
given within twenty (20) days after the giving of any such notice by the
Company, the Company will use commercially reasonable efforts to cause to be
covered by such Registration Statement all shares of Registrable Stock requested
to be covered by such Holder or Holders. If the Registration Statement is to
cover an underwritten distribution, the Company shall use its commercially
reasonable efforts to cause the Registrable Stock requested for inclusion
pursuant to this Section 3 to be included in the underwriting on the same terms
and conditions as the securities otherwise being sold through the underwriters.
If, in the good faith judgment of the managing underwriter of such public
offering, the inclusion of all of the Registrable Stock requested for inclusion
pursuant to this Section 3 and the other securities intended to be included
therein would interfere with the successful marketing of a smaller number of
shares to be offered, then the number of shares of Registrable Stock and other
securities to be included in the offering (except for shares to be issued by the
Company in an offering initiated by the Company) shall be reduced such that the
total number of shares to be included in such registration is the number of
shares recommended by such managing underwriter, with the participation in such
offering by the Holders, if any, to be pro rata among the holders thereof
requesting such registration, based upon the number of shares of Registrable
Stock and other securities requested to be covered by such Holder or Holders.
The rights granted to Holders under this Section 3 shall terminate on the date
four years after the closing of the Company's initial public offering if
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its Common Stock.
4. Registration on Form S-3. If at any time (i) a Holder or
Holders of sixty six and two-thirds percent (66 2/3%) of the voting power of all
Registrable Stock then outstanding request that the Company file a registration
statement on Form S-3 or any successor thereto for a public offering of all or
any portion of the shares of Registrable Stock held by such requesting Holder or
Holders, the reasonably anticipated aggregate price to the public of which would
exceed $1,000,000, and (ii) the Company is a registrant entitled to use Form S-3
or any successor thereto to register such shares, then the Company shall use
commercially reasonable efforts to register under the Securities Act on Form S-3
or any successor thereto, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable Stock
specified in such notice. Whenever the Company is required by this Section 4 to
use commercially reasonable efforts to effect the registration of Registrable
Stock, each of the procedures and requirements of Section 2 (including but not
limited to the requirement that the Company notify all Holders from whom notice
has not been received and provide them with the opportunity to participate in
the offering) shall apply to such registration. The Company shall be obligated
to register Registrable Stock pursuant to this Section on one occasion only;
provided, however, that such occasion shall be deemed to have
occurred only when a Registration Statement covering all shares of Registrable
Stock specified in notices received as aforesaid shall have become effective.
5. Registration Procedures. If and whenever the Company is
required by the provisions of Section 2, 3 or 4 hereof to effect the
registration of shares of Registrable Stock under the Securities Act, the
Company will, at its expense, as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
Registration Statement with respect to such securities and use
commercially reasonable efforts to cause such Registration Statement to
become and remain effective until the securities covered by such
Registration Statement have been sold, and prepare and file with the
Commission such amendments to such Registration Statement and
supplements to the prospectus contained therein as may be necessary to
keep such Registration Statement effective and such Registration
Statement and prospectus accurate and complete until the securities
covered by such Registration Statement have been sold;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance
reasonably satisfactory to the managing underwriter, if any, of the
public offering and the Holders participating in such offering;
(c) Furnish to the participating Holders and to the
underwriters such reasonable number of copies of the Registration
Statement, preliminary prospectus, final prospectus and such other
documents as such underwriters and participating Holders may reasonably
request in order to facilitate the public offering of such securities;
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(d) Use its commercially reasonable efforts to register or
qualify the securities covered by such Registration Statement under
such state securities or blue sky laws of such jurisdictions (i) as
shall be reasonably appropriate for the distribution of the securities
covered by such Registration Statement or (ii) as such participating
Holders and underwriters may reasonably request within twenty (20) days
following the original filing of such Registration Statement, except
that the Company shall not for any purpose be required to execute a
general consent to service of process, to subject itself to taxation,
or to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified;
(e) Notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the date and time
when such Registration Statement and each post-effective amendment
thereto has become effective or a supplement to any prospectus forming
a part of such Registration Statement has been filed;
(f) Notify the Holders participating in such registration
promptly of any request by the Commission or any state securities
commission or agency for the amending or supplementing of such
Registration Statement or prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the
request of any participating Holder, any amendments or supplements to
such Registration Statement or prospectus which, in the opinion of
counsel representing the Company in such Registration (which counsel is
reasonably acceptable to such participating Holders), is required under
the Securities Act or the rules and regulations thereunder in
connection with the distribution of the Registrable Stock by such
participating Holders;
(h) Prepare and promptly file with the Commission, and
promptly notify participating Holders of the filing of, such amendments
or supplements to such Registration Statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered
under the Securities Act, any event has occurred as a 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 required to be stated therein or necessary to make the
statements therein not misleading;
(i) In case any participating Holder or any underwriter for
any Holder is required to deliver a prospectus at a time when the
prospectus then in circulation is not in compliance with the Securities
Act or the rules and regulations of the Commission, prepare promptly
upon request such amendments or supplements to such Registration
Statement and such prospectus as may be necessary in order for such
prospectus to comply with the requirements of the Securities Act and
such rules and regulations;
(j) Advise participating Holders, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission or any
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state securities commission or agency suspending the effectiveness of
such Registration Statement or the initiation or threatening of any
proceeding for that purpose and promptly use commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(k) At the request of any participating Holder (i) furnish to
such Holder 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 the Company for the purposes of
such registration, addressed to the underwriters, if any, and to the
Holder or Holders making such request, covering such matters with
respect to the registration statement, the prospectus and each
amendment or supplement thereto, proceedings under state and Federal
securities laws, other matters relating to the Company, the securities
being registered and the offer and sale of such securities as are
customarily the subject of opinions of issuer's counsel provided to
underwriters in underwritten public offerings and (ii) use its
commercially reasonable efforts to furnish to such Holder letters dated
each such effective date and such closing date, from the independent
certified public accountants of the Company, addressed to the
underwriters, if any, and to the Holder or Holders making such request,
stating that they are independent certified public accountants within
the meaning of the Securities Act and dealing with such matters as the
underwriters may request, or, if the offering is not underwritten, that
in the opinion of such accountants the financial statements and other
financial data of the Company included in the Registration Statement or
the prospectus or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of the
Securities Act, and additionally covering 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 such requesting Holder or
Holders may reasonably request; and
(i) Use its best efforts to ensure the obtaining of all
necessary approvals from the NASD.
6. Expenses.
(a) With respect to each registration effected pursuant to
Section 2, 3 or 4 hereof, all fees, costs and expenses of and
incidental to such registration and the public offering in connection
therewith shall be borne by the Company; provided, however, (i) that
Holders participating in any such registration shall bear their pro
rata share of the underwriting discounts and selling commissions and
(ii) any fee, cost or expense which does not constitute a normal fee,
cost or expense of such registration and which is attributable solely
to a particular Holder participating in any such registration shall be
borne by such Holder.
(b) The fees, costs and expenses of registration to be borne
as provided in paragraph (a) above, shall include, without limitation,
all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the
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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),
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, reasonable
fees and disbursements of one counsel for the selling security holders
and the premiums and other costs of policies of insurance insuring the
Company against liability arising out of such public offering.
7. Indemnification and Contribution.
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Holder of shares of Registrable Stock
which are included in a Registration Statement filed pursuant to the
provisions of this Agreement and any underwriter (as defined in the
Securities Act) for such Holder, and any Person who controls such
Holder or such underwriter within the meaning of the Securities Act,
and each of their successors, from and against, and will reimburse such
Holder and each such underwriter and controlling Person with respect
to, any and all claims, actions, demands, losses, damages, liabilities,
costs and expenses to which such Holder or any such underwriter or
controlling 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 omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of any violation by the Company of
any rule or regulation under the Securities Act applicable to the
Company and relating to action or inaction required of the Company in
connection with such registration; provided, however,
that the Company will not indemnify and hold harmless in any such case
to the extent that any such claim, action, demand, loss, damage,
liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in reliance upon and in conformity with information furnished
by such Holder, such underwriter or such controlling Person for use in
the preparation of such Registration Statement; and provided,
further, that this indemnity shall not be deemed to relieve any
underwriter of any of its due diligence obligations.
(b) Each Holder of shares of the Registrable Stock which are
included in a registration pursuant to the provisions of this Agreement
will, severally and not jointly, indemnify and hold harmless the
Company from and against, and will reimburse the Company with respect
to, any and all losses, damages, liabilities, costs or expenses to
which the Company may become subject under the Securities Act or
otherwise, to the extent that any such loss, damage, liability, cost or
expense arises out of or is based upon any untrue or alleged untrue
statement of any material fact contained in a Registration Statement
filed pursuant to the provisions of this Agreement or any amendment or
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supplement thereto, or arises out of or is based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, 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 conformity with information
furnished by such Holder for use in the preparation thereof;
provided, however, that the liability of each Holder
hereunder shall be limited to the proportion of any such claim, action,
demand, loss, damage, liability, cost or expense which is equal to the
proportion that the public offering price of the shares of Registrable
Stock sold by such Holder under such Registration Statement bears to
the total offering price of all securities sold thereunder, but not, in
any event, to exceed the proceeds received by such Holder from the sale
provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence
obligations.
(c) Promptly after receipt by a party to be indemnified
pursuant to the provisions of paragraph (a) or (b) of this Section 7
(an "Indemnified Party") of notice of the commencement of any
action involving the subject matter of the foregoing indemnity
provisions, such Indemnified Party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of
paragraph (a) or (b) of this Section 7, notify the indemnifying party
of the commencement thereof; but any omission to notify the
indemnifying party will not relieve the indemnifying party from any
liability which it may have to an Indemnified Party otherwise than
under this Section 7 and shall not relieve the indemnifying party from
any liability under this Section 7 unless such indemnifying party is
prejudiced by such omission. In case an action is brought against any
Indemnified Party and such Indemnified Party notifies the indemnifying
party of the commencement thereof, the indemnifying party shall have
the right to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party
pursuant to the provisions of such paragraph (a) and (b) for any legal
or other expense subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. 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; 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 in
respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either
(i) any Holder exercising rights under this Agreement, or any
controlling Person of any such Holder, makes a claim for
indemnification pursuant to this Section 7 but it is judicially
determined (by the entry of a
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final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 7 provides for
indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of any such selling Holder or any such
controlling Person in circumstances for which indemnification is
provided under this Section 7; then, and in each such case, the Company
and such Holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that such Holder is responsible for
the portion represented by the percentage that the aggregate public
offering price of the Registrable Stock offered by such Holder pursuant
to the Registration Statement bears to the aggregate public offering
price of all securities offered pursuant to the Registration Statement,
and the Company is responsible for the remaining portion; provided,
however, that, in any such case, (A) no Person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any Person or
entity who was not guilty of such fraudulent misrepresentation and (B)
no such Holder will be required to contribute any amount in excess of
the public offering price of all such Registrable Stock offered by it
pursuant to such Registration Statement.
8. Reporting Requirements Under Securities Exchange Act of 1934.
When it is first legally required to do so, the Company shall register its
Common Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall (whether or not it shall then be required to do
so) timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act. Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of Registrable Stock (i) a written statement by the
Company that it has complied with such reporting requirements, (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 8 are (a) to enable any such Holder to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (b) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use commercially reasonable
efforts to qualify for the use of Form S-3.
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9. Stockholder Information. The Company may require each Holder
of Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
10. Lock-Up Agreements.
(a) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public sale or other distribution of
its equity securities, or any securities convertible into or
exchangeable or exercisable for such equity securities, during the
period, not to exceed 180 days (as requested by the Company and the
managing underwriter), following the effective date of any underwritten
public offering of securities of the Company, except in connection with
any such underwritten offering and except for equity securities issued
pursuant to employee stock option plans or in conjunction with any
merger or consolidation with, or acquisition of the stock or assets of,
any other entity.
(b) Restrictions on Public Sale by the Holders of
Registrable Stock. Each Holder of Registrable Stock agrees that it
will not, to the extent requested by the Company and the managing
underwriter of such offering, sell or otherwise dispose of any equity
securities of the Company, including any sale pursuant to Rule 144
during a specified period (not to exceed 180 days) commencing on the
effective date of such underwritten offering, except in conjunction
with such underwritten offering; provided that each officer and
director of the Company shall enter into similar agreements.
11. Notices. Any notice or other communication in connection
with this Agreement shall be deemed to be delivered if in writing addressed as
provided below and if either (a) actually delivered at said address, (b) in the
case of a letter, seven business days shall have elapsed after the same shall
have been deposited in the mail, postage prepaid and registered or certified,
return receipt requested or (c) transmitted and confirmed to any address outside
of the United States, by telecopy by overnight or two-day courier:
If to the Company: Unveil Technologies
000 0xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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If to any Investor: To the address for each such Investor set
forth on Schedule A hereto
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section, provided that a change of address shall only be effective upon receipt.
12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
13. Waivers; Amendments. This Agreement may be modified or
amended, and any provision hereunder may be waived, only by a writing executed
by the Company and the Holders of at least a majority of the Registrable Stock;
provided, however, that no amendment, modification or waiver shall
be effective if and to the extent that such amendment, modification or waiver
grants to any one or more Investors any rights more favorable than any rights
granted to all other Investors or otherwise treats any Investors differently
that all other Investors, unless each negatively-affected Investor consents to
such amendment, modification or waiver.
14. Other Registration Rights. The Company shall not grant to
any third party any registration rights more favorable than any of those
contained herein, so long as any of the registration rights under this Agreement
remain in effect, unless the Holders of Registrable Stock are granted rights to
participate together with any such third party in such registration rights.
15. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the respective legal representatives,
successors and assigns of the parties hereto; provided, however,
that no Person who acquires Registrable Stock from a Holder (a
"Transferee") shall be entitled to any rights under this Agreement unless
such Transferee (a) holds shares of Series A Preferred Stock with an original
purchase price of $100,000 (a "Qualifying Transferee") or such Transferee
is an Affiliate of a party hereto or a Qualifying Transferee and (b) such
Transferee agrees to be bound by the terms and conditions of this Agreement.
16. 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.
17. Entire Agreement. This Agreement, the Purchase Agreement and
the Shareholders Agreement, dated as of the date hereof, by and among the
Company, the Stockholders (as defined therein) and the Preferred Stockholders
(as defined therein) (including in each case any and all exhibits, schedules and
other instruments contemplated thereby) constitute the entire agreement of the
parties with respect to the subject matter hereof. To the extent any term or
other provision of any other agreement or instrument by which any party hereto
is bound conflicts with this Agreement, this Agreement will have precedence over
such conflicting term or provision.
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18. Headings. Headings in this Agreement are included for
reference only and shall have no effect upon the construction or interpretation
of any part of this Agreement.
19. Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
20. No Registration of Preferred Stock. Notwithstanding anything
in this Agreement to the contrary, at no time will the Company be required to
register securities other than Common Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as a sealed instrument as of the day and year first above
written.
COMPANY:
UNVEIL TECHNOLOGIES, INC.
By:_______________________________
Name:
Title:
INVESTORS:
VOICENET, INC.
By:______________________________
Name:
Title:
________________________________
Xxxx Xxxxxx
________________________________
Xxxxx Xxxxxxx
________________________________
Xxxxxxx Xxxxx
________________________________
Xxxx Xxxxxx
REGISTRATION RIGHTS AGREEMENT SCHEDULE A
Stockholder Number of Shares
Common Stockholders
Xxxx Xxxxxx 1,708,333
Xxxxx Xxxxxxx 1,708,333
Xxxxxxx Xxxxx 1,708,333
Xxxx Xxxxxx 2,375,000
Preferred Stockholders
Voicenet, Inc. 2,500,000
