REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of April 23, 2002 by and among Sensar Corporation, a Nevada corporation (the
"Company"), Brookstreet Securities Corporation, a California corporation
("BSC") and Xxxx X. Xxxxxx ("Madrid" and, together with BSC, "Consultants"),
and each person who becomes a "Holder" (as defined herein) from time to time,
with reference to the following facts:
A. Consultants are providing consulting services to the Company in
exchange for, among other things, (i) a Warrant (the "BSC Warrant"), dated of
even date herewith, issued to BSC to purchase 212,500 shares of common stock,
$.001 par value ("Common Stock"), of the Company, and (ii) a Warrant (the
"Madrid Warrant"), dated of even date herewith, issued to Madrid to purchase
637,500 shares of Common Stock.
B. The Company and Consultants mutually desire for the Consultants to
have certain registration rights subject to the terms, conditions and
limitations of this Agreement.
NOW, THEREFORE, in reliance upon the foregoing recitals and in
consideration of the mutual promises hereinafter set forth, the parties hereto
hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. Capitalized terms used in this Agreement shall have the
meanings ascribed to them in Article 4 or otherwise set forth in the text of
this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
2.1 "PIGGY BACK" REGISTRATIONS. If the Company proposes to register any
of its securities, either for its own account or the account of a security
holder or holders exercising their registration rights, other than a
registration relating to employee benefit plans or corporate reorganizations or
a registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, or a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt or equity securities which are
also being registered, the Company will:
(a) Promptly give to each Holder of Registrable Securities written
notice thereof (which shall include the number of shares the Company or other
security holder proposes to register and, if known, the name of the proposed
underwriter); and
(b) Use its Best Efforts to include in such registration all the
Registrable Securities specified in a written request or requests, made by any
Holder within twenty (20) days
after the date of delivery of the written notice from the Company described in
clause (a) above. If the underwriter advises the Company that marketing
considerations require a limitation on the number of shares offered pursuant to
the registration statement, then the Company may offer all of the securities it
proposes to register for its own account or the maximum amount that the
underwriter considers saleable and such limitation on any remaining securities
that may, in the opinion of the underwriter, be sold will be imposed PRO RATA
among all shareholders who request to include shares in such registration
statement according to the number of Registrable Securities and Other
Registrable Shares each such shareholder requested to be included in such
registration statement.
2.2 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 2.1 shall be paid by the Company. All Selling Expenses incurred in
connection with any such registration, qualification or compliance shall be
borne by the holders of the securities registered, pro rata on the basis of the
number of their shares so registered.
2.3 REGISTRATION PROCEDURES. In the case of each registration effected by
the Company pursuant to this Agreement, the Company will keep each Holder of
Registrable Securities included in such registration advised in writing as to
the initiation of each registration and as to the completion thereof. At its
expense, the Company will do the following for the benefit of such Holders:
(a) Keep such registration effective for a period of one hundred
twenty days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs, and amend or supplement such registration statement and the prospectus
contained therein from time to time to the extent necessary to comply with the
Securities Act and applicable state securities laws;
(b) Use its Best Efforts to register or qualify the Registrable
Securities covered by such registration under the applicable securities or "blue
sky" laws of such jurisdictions as the selling shareholders may reasonably
request; PROVIDED, THAT the Company shall not be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or otherwise
required to be so qualified or to take any action which would subject it to the
service of process in suits other than those arising out of such registration;
(c) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request; and
(d) Permit the counsel to the selling shareholders to inspect and copy
such corporate documents as such counsel may reasonably request, subject to
execution by such counsel of an appropriate confidentiality agreement.
2.4 INDEMNIFICATION.
(a) The Company will, and hereby does, indemnify each Holder, each of
its officers, directors and partners, and each person controlling such Holder
within the meaning of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls such underwriter within
the meaning of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on 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, or any violation by the
Company of the Securities Act or the Exchange Act or securities act of any state
or any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such Holder,
each of its officers, directors and partners, and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
whether or not resulting in any liability, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement (or
alleged untrue statement) or omission (or alleged omission) based upon written
information furnished to the Company by such Holder or underwriter and stated to
be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other such Holder and each of their officers,
directors and partners, and each person controlling such Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
Holder's directors, officers, partners, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
whether or not resulting in liability, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of each
Holder hereunder shall be limited to an amount equal to the net proceeds
received by such Holder upon sale of such Holder's securities.
(c) Each party entitled to indemnification under this Section 2.4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this Section 2.4 (except and to the
extent the Indemnifying Party has been prejudiced as a consequence thereof). The
Indemnifying Party will be entitled to participate in, and to the extent that it
may elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, at its expense to
assume, the defense of any such claim or any litigation resulting therefrom,
with counsel reasonably satisfactory to such Indemnified Party, PROVIDED THAT
the Indemnified Party may participate in such defense at its expense,
notwithstanding the assumption of such defense by the Indemnifying Party, and
PROVIDED, FURTHER, that if the defendants in any such action shall include both
the Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, the Indemnified Party or Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties and the fees and expenses of such counsel shall be
paid by the Indemnifying Party. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall (i) furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom and
(ii) shall reasonably assist the Indemnifying Party in any such defense,
provided that the Indemnified Party shall not be required to expend its funds in
connection with such assistance.
(d) If the indemnification provided for in subsections 2.4(a) or
2.4(b) is unavailable or insufficient to hold harmless an Indemnified Party
under such subsections in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each Indemnifying Party
shall in lieu of indemnifying such Indemnified Party contribute to the amount
paid or payable by such Indemnified Party as a result of losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the sellers of such
Registrable Securities, on the other, in connection with the statements or
omissions, which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give any notice under subsection 2.4(c). The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Company on the one hand, or the sellers of such Registrable Securities, on the
other hand, and to the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Registrable Securities agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by PRO RATA allocation (even if all of the sellers of such
Registrable Securities were treated as one entity for such purpose) or by any
other method of allocation which did not take account of the equitable
considerations referred to above in this subsection. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection, the sellers of such
Registrable Securities shall not be required to contribute any amount in excess
of the amount, if any, by which the net proceeds received by such sellers for
the Common Stock sold by each of them under such registration statement exceeds
the amount of any damages which they would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
(e) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
Section 2.1 to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons entitled to
select the underwriters) and enter into an underwriting agreement in customary
form with an underwriter or underwriters selected by the Company.
2.5 INFORMATION BY HOLDER. Each Holder of Registrable Securities included
in any registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Agreement
or otherwise required by applicable state or federal securities laws.
2.6 "STANDOFF" AGREEMENT. Each Holder, if requested by the Company and the
managing underwriter of an offering by the Company of Common Stock or other
securities of the Company pursuant to a Registration Statement, shall agree not
to sell publicly or otherwise transfer or dispose of any Registrable Securities
or other securities of the Company held by Holder for a specified period (not to
exceed 180 days) following the effective date of such Registration Statement.
2.7 EXCEPTION TO REGISTRATION; TERMINATION.
(a) The Company shall not be required to effect a registration under
this Agreement if in the written opinion of counsel for the Company, such
Holders of Registrable Securities may sell without registration under the
Securities Act all Registrable Securities for which they requested registration
under the provisions of the Securities Act and in the manner and in the quantity
in which the Registrable Securities were proposed to be sold.
(b) The registration rights granted under this Agreement will
terminate thirty months following the Effective Time.
2.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned (but
only with all related obligations) by a Holder to a transferee or assignee of
such securities that (i) is a subsidiary, parent, partner, limited partner or
retired partner of a Holder, or (ii) is a Holder's family member or trust for
the benefit of an individual Holder, in each case only if after such assignment
or transfer, the assignee holds at least 50,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) the Company 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; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 2.4 hereof; and (c) 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.
ARTICLE 3
MISCELLANEOUS
3.1 SPECIFIC ENFORCEMENT. Each party expressly agrees that the other
parties and the Company would be irreparably damaged if this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms or
provisions of this Agreement by any party, the other parties and the Company
shall, in addition to all other remedies, each be entitled to a temporary or
permanent injunction, and/or decree for specific performance, in accordance with
the provisions hereof, without the necessity of proof of actual charges or the
posting of a bond or other security.
3.2 SUCCESSORS AND ASSIGNS. Except as provided herein to the contrary, and
subject to the restrictions on transfers set forth herein, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their
respective successors, successors-in-title, heirs and assigns, and each such
party shall hold all Registrable Securities subject to all of the terms and
provisions of this Agreement.
3.3 WAIVERS, AMENDMENTS, ETC. No waiver, modification or amendment of this
Agreement shall be valid or binding unless such waiver, modification or
amendment is in writing and duly executed by the Company and the Holders of a
majority of the outstanding Registrable Securities.
3.4 NOTICES. All notices under this Agreement shall be in writing. Any
notice shall be deemed to have been duly given if delivered personally, mailed,
certified mail, return receipt requested, or sent by nationally recognized
overnight delivery service, to the parties hereto at the addresses set forth on
Exhibit A. Upon notice from any party of a change of address, the Board will
cause Exhibit A to be amended to reflect the new address of such party.
3.5 GOVERNING LAW; INTERPRETATION. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted,
construed and enforced in
accordance with the internal laws of the State of California. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited by or invalid under any such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating or
nullifying the remainder of such provision or any other provisions of this
Agreement. All parties have contributed to the preparation of this Agreement,
which shall be interpreted as if all parties had drafted it.
3.6 HEADINGS. The headings of Articles and Sections herein are inserted
for convenience of reference only and shall be ignored in the construction or
interpretation hereof.
3.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and with counterpart signature pages (including signature pages
delivered by facsimile), all of which together shall for all purposes constitute
one Agreement.
3.8 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter.
3.9 NO THIRD PARTY BENEFICIARIES. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any Person not a party to this
Agreement, including without limitation any creditor of any party.
3.10 ATTORNEYS FEES. In the event of any litigation between the parties
hereto, the prevailing party or parties shall be entitled to recover their out
of pocket expenses (including fees and costs of attorneys) from the
non-prevailing party or parties.
ARTICLE 4
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following respective meanings:
AGREEMENT shall have the meaning specified in the Preamble.
BEST EFFORTS with respect to the Company shall mean the reasonable good
faith efforts of the Company.
BOARD shall the Board of Directors of the Company.
BSC WARRANT shall have the meaning specified if Paragraph A of the
Recitals.
COMMON STOCK shall have the meaning specified in Paragraph A of the
Recitals.
COMPANY shall have the meaning specified in the Preamble, and shall also
include any successor entity to the Company.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time, and the rules, regulations and interpretations thereunder.
HOLDER means the person who is the then record owner of Registrable
Securities which have not been sold to the public.
INDEMNIFIED PARTY shall have the meaning specified in Section 2.4(c).
INDEMNIFYING PARTY shall have the meaning specified in Section 2.4(c).
MADRID WARRANT shall have the meaning specified if Paragraph A of the
Recitals.
OTHER REGISTRABLE SHARES shall mean any shares of Common Stock which the
Company has the obligation to register pursuant to any other registration rights
agreements to which the Company is a party or is bound.
PERSON shall mean any natural person, corporation, limited liability
company, partnership, trust or other entity.
The term REGISTER, REGISTERED and REGISTRATION refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement.
REGISTRABLE SECURITIES means (i) all of the shares of Common Stock issued
or issuable upon exercise of the Warrants or either of them; and (ii) any Common
Stock issued in respect of the shares described in clause (i) upon any stock
split, stock dividend, recapitalization or other similar event. Securities will
cease to be Registrable Securities when (a) they have been registered under the
Securities Act, the registration statement in connection therewith has been
declared effective, and they have been disposed of pursuant to such effective
registration statement, (b) they are distributed to the public pursuant to Rule
144 (or any similar provision then in force) under the Securities Act or (c)
they have been otherwise transferred and new certificates or other evidences of
ownership for them (not bearing a legend to the effect that such securities have
not been registered under the Securities Act and may not be sold or transferred
in the absence of registration or an exemption therefrom under the Securities
Act, and not subject to any stop transfer order or other restriction on
transfer) have been delivered by or on behalf of the Company, and they may be
resold without subsequent registration under the Securities Act.
REGISTRATION EXPENSES means all expenses incurred by the Company in
compliance with Sections 2.1 or 2.2, including, without limitation, all
registration and filing fees, printing expenses, transfer taxes, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration.
SECURITIES ACT shall mean the Securities Act of 1933, as amended.
SELLING EXPENSES means all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and any fees and disbursements
of any counsel or other advisor retained by the selling Holders.
WARRANTS shall mean the Madrid Warrant and the BSC Warrant.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SENSAR CORPORATION
By: /s/ Xxxxx Xxxxxxxx, CEO
-------------------------------------
BROOKSTREET SECURITIES CORPORATION
By:
-------------------------------------
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
EXHIBIT A
Brookstreet Securities Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000
Xxxx X. Xxxxxx
C/O Brookstreet Securities Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Sensar Corporation
Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
