EXECUTION COPY
Exhibit 10.50
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of September 9, 2003 (as
the same from time to time may be amended, supplemented or waived, the
"Agreement"), by and between Nobel Learning Communities, Inc., a Delaware
corporation (the "Company") and the parties set forth on Schedule A attached
hereto (the "Investors").
BACKGROUND:
WHEREAS, the parties hereto are parties to a Series F Convertible
Preferred Stock Purchase Agreement, dated the date hereof (the "Purchase
Agreement"), pursuant to which the Investors purchased shares of Series F
Convertible Preferred Stock from the Company (together with any additional
shares of Series F Convertible Preferred Stock that may be issued to the holders
thereof as dividends, the "Preferred Shares"); and
WHEREAS, one of the conditions to the consummation of the transactions
contemplated by the Purchase Agreement is the execution and delivery of this
Agreement to provide for registration rights for the Preferred Shares purchased
by the Investors.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the purchase of the Preferred Shares by the Investors, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean Common Stock, $0.001 par value, of the
Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in Section
7.
"Restricted Stock" shall mean the Conversion Shares, excluding (a)
shares which have been registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them, (b) shares which have been
publicly sold pursuant to Rule 144 under the Securities Act, or (c) shares which
are eligible to be publicly sold in a single transaction under paragraph (k) of
Rule 144.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 7.
"Series E Preferred Stock" shall mean the Company's Series E
Convertible Preferred Stock, $0.001 par value per share.
2. Restrictive Legend. Each certificate representing Preferred Shares
or Conversion Shares shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
A certificate shall not bear such legend if in the written opinion of counsel
satisfactory to the Company, the securities being sold thereby may be publicly
sold without registration under the Securities Act.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Preferred Shares or Conversion Shares (other than under the circumstances
described in Sections 4 or 5), the holder thereof shall give written notice to
the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel satisfactory to the Company to the
effect that the proposed transfer may be effected without registration under the
Securities Act, whereupon the holder thereof shall be entitled to transfer such
stock in accordance with the terms of its notice. Each certificate for Preferred
Shares or Conversion Shares transferred as above provided shall bear the legend
set forth in Section 2, except that such certificate shall not bear such legend
if the opinion of counsel referred to above is to the effect that the transferee
and any subsequent transferee would be entitled to transfer such securities in a
public sale without registration under the Securities Act. The restrictions
provided for in this Section 3 shall not apply to securities which are not
required to bear the legend prescribed by Section 2 in accordance with the
provisions of that Section.
4. Required Registration.
(a) Subject to the limitation expressed in Section 5(b), at any time
after the first anniversary of the date of this Agreement, the holders of
Restricted Stock constituting at
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least 50% of the total shares of Restricted Stock then outstanding may request
the Company to register under the Securities Act all or any portion of the
shares of Restricted Stock held by such requesting holder or holders for sale in
the manner specified in such notice; provided, that the shares of Restricted
Stock for which registration has been requested shall constitute at least 50% of
the total shares of Restricted Stock originally issued if such holder or holders
shall request the registration of less than all shares of Restricted Stock then
held by such holder or holders. For purposes of this Section 4 and Sections 5,
12(a) and 12(d), the term "Restricted Stock," shall be deemed to include the
number of shares of Restricted Stock which would be issuable to a holder of
Preferred Shares upon conversion of all Preferred Shares held by such holder at
such time, provided, however, that the only securities which the Company shall
be required to register pursuant hereto shall be shares of Common Stock, and
provided further, however, that, in any underwritten public offering
contemplated by this Section 4 or Section 5, the holders of Preferred Shares
shall be entitled to sell such Preferred Shares to the underwriters for
conversion and sale of the shares of Common Stock issued upon conversion
thereof. Notwithstanding anything to the contrary contained herein, no request
may be made under this Section 4 within 120 days after the effective date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering in which the holders of Restricted Stock shall have
been entitled to join pursuant to Section 5 and in which there shall have been
effectively registered all shares of Restricted Stock as to which registration
shall have been requested. The rights provided in this Section 4 may not be
exercised more than once in any twelve (12) month period.
(b) Following receipt of any notice under this Section 4, the Company
shall immediately notify all holders of Restricted Stock from whom notice has
not been received 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
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the holders of a majority of the shares of Restricted 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 not be obligated to register Restricted
Stock pursuant to this Section 4 on more than two occasions (at least one of the
two occasions can be for a "shelf registration"); provided, however, that such
obligation shall be deemed satisfied only when a registration statement covering
all shares of Restricted Stock specified in notices received as aforesaid, for
sale in accordance with the method of disposition specified by the requesting
holders, shall have become effective and, if such method of disposition is a
firm commitment underwritten public offering, 75% of all such shares shall have
been sold pursuant thereto.
(c) The Company may include in any registration requested pursuant to
this Section 4 any shares of Common Stock for sale for its own account or for
the account of any other person entitled to "piggy-back" or "incidental rights"
as of the date hereof; provided, that such inclusion shall not affect the number
of shares of Restricted Stock that can be sold in the related offering. In
connection with an underwritten offering, if the managing underwriter advises
the Company in writing that in its opinion the number of shares of Restricted
Stock requested by the holders of Restricted Stock to be registered exceeds the
number which can be sold in such offering, the Company shall include in such
registration statement the number of shares of Restricted Stock that, in the
opinion of the managing underwriter, can be sold as
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follows: (i) first, the Restricted Stock requested to be registered, pro rata
among the holders of Restricted Stock that have requested their Restricted Stock
to be registered, (ii) second, Common Stock requested to be registered by
holders of existing registration rights on the date hereof, and (iii) third, any
other Common Stock requested to be included in such registration.
5. Incidental Registration.
(a) If the Company at any time (other than pursuant to Section 4)
proposes to register any of its securities under the Securities Act for sale to
the public, whether for its own account or for the account of other security
holders or both (except with respect to registration statements on Forms X-0,
X-0 or another form not available for registering the Restricted Stock for sale
to the public), each such time it will give written notice to all holders of
outstanding Restricted Stock of its intention so to do. Upon the written request
of any such holder, received by the Company within 30 days after the giving of
any such notice by the Company, to register any of its Restricted Stock (which
request shall state the intended method of disposition thereof), the Company
will use its best efforts to cause the Restricted Stock as to which registration
shall have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the holder (in
accordance with its written request) of such Restricted Stock so registered. In
the event that any registration pursuant to this Section 5 shall be, in whole or
in part, an underwritten public offering of Common Stock, the number of shares
of Restricted Stock to be included in such an underwriting may be reduced (pro
rata among the requesting holders based upon the number of shares of Restricted
Stock owned by such holders and the shares of Common Stock held by the persons
or entities referred to in clauses (ii) and (iii) of the proviso to this Section
5(a)) if and to the extent that the managing underwriter advises the Company
that marketing factors require a limitation of the number of shares of Common
Stock to be underwritten in such registration; provided, however, that such
number of shares of Restricted Stock shall not be reduced if any shares are to
be included in such underwriting for the account of any person other than (i)
the Company, (ii) requesting holders of Restricted Stock or (iii) any other
holders of Common Stock ,(or securities convertible into or exchangeable for
Common Stock) who as of the date hereof, are entitled to contractual "piggyback"
or "incidental" rights to be included in the registration statement.
Notwithstanding the provisions of this Section 5(a), if the registration was
initiated by the Company at the request of a person or persons entitled to
demand rights as of the date hereof exercising such demand rights, priority in
underwriter cutbacks with respect to such registration shall be governed by the
provisions of their particular agreement providing for such demand rights;
provided, that the holders of Restricted Stock that have requested inclusion of
their Restricted Stock to be included therein shall be pari passu with the
holders of Series E Preferred Stock, if any, who have exercised their rights to
incidental registration under Section 5 of the Registration Rights Agreement
dated June 17, 2003, among the Company and the investors named therein (pro rata
among the requesting holders based upon the number of shares of Restricted Stock
owned by such holders and the shares of Common Stock issuable upon conversion of
the Series E Preferred Stock held by holders of such securities) and have
priority over any other persons holding securities requested to be included in
such registration. Whenever a registration statement is deemed (pursuant to the
provisions of Section 4) to be a registration statement initiated by the Company
and therefore governed by the provisions of this Section 5, such registration
statement shall nevertheless be deemed to count as a registration statement
required to be filed by the Company under Section 4 if the registration
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statement covers all shares of Restricted Stock specified in the notices from
the requesting holders thereof for sale in accordance with the method of
disposition specified in such notice, becomes effective and, if such method of
disposition is a firm commitment underwritten public offering, 75% of all such
shares are sold pursuant thereto.
(b) Notwithstanding anything herein to the contrary, the Company shall
not be required to file any registration statement registering the Restricted
Stock upon the demand of the holders of the Restricted Stock made under Section
4 during the period beginning on the date of the Company's receipt of a notice
from requesting holders pursuant to Section 4 or Section 6 of the Registration
Rights Agreement by and among the Company, Edison Venture Fund II, L.P. and
Edison Venture Fund, II-Pa., L.P. and ending on the date on which the
distribution of the securities included in such registration has been completed.
6. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 4 or 5 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or S-3 or such other form of general applicability
satisfactory to the managing underwriters selected as herein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in Section 6(a) and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter
such number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
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(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i)
the happening of any event of which the Company has knowledge as a result of
which the prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, (ii) any
request by the Commission for amendments or supplements to the registration
statement or the prospectus or for additional information, (iii) the issuance by
the Commission of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose, or
(iv) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Restricted Stock for sale in any
jurisdiction or the initiation of any proceeding for such purposes, whereupon
each such seller shall refrain from making any sales of Restricted Stock in any
jurisdiction in which such sales may not be made until such seller has either
received from the Company a prospectus supplement describing such event or has
been advised in writing by the Company that the use of the prospectus may be
resumed;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, 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 Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
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For purposes of Section 6(a) and 6(b) and of Section 4(c), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of (1) the sale of all Restricted stock covered thereby, or (2) 120
days after the effective date thereof.
In connection with each registration hereunder, the sellers of Restricted Stock
will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as the Company may reasonably
request or as shall be necessary in order to assure compliance with federal and
applicable state securities laws.
In connection with each registration pursuant to Sections 4 or 5 covering an
underwritten public offering, the Company and each seller agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
7. Expenses. All expenses incurred by the Company in complying with
Sections 4 or 5, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, reasonable and documented fees and expenses
of one counsel to the participating Investors not to exceed $25,000 in the
aggregate, fees and expenses (including counsel fees) incurred in connection
with complying with state securities or "blue sky" laws, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, and costs of insurance for the sellers of Restricted Stock, but
excluding any Selling Expenses, are called "Registration Expenses". All
underwriting discounts, selling commissions and fees of counsel to participating
sellers applicable to the sale of Restricted Stock are called "Selling
Expenses"; provided, however, that the Company will pay the reasonable and
documented fees and expenses of one counsel to the participating Investors not
to exceed $25,000 in the aggregate; provided further, that the Company will not
be required to pay fees for any counsel to the participating Investors under
this Section 7 to the extent such counsel fees are paid under Section 7 of the
Registration Rights Agreement, dated June 17, 2003, by and among the Company and
the investors named therein.
The Company will pay all Registration Expenses in connection with
each registration statement under Sections 4 or 5. All Selling Expenses in
connection with each registration statement under Sections 4 or 5 shall be borne
by the participating sellers in proportion to the number of shares sold by each,
or by such participating sellers other than the Company (except to the extent
the Company shall be a seller) as they may agree.
8. Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4 or 5, the Company will indemnify
and hold harmless each seller of such Restricted Stock thereunder, each
underwriter of such Restricted Stock thereunder and each other person, if any,
who controls such seller or underwriter within the meaning of the
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Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 4 or 5, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, 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, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by or on behalf of any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock under
the Securities Act pursuant to Sections 4 or 5, each seller of such Restricted
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4 or 5, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, 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, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by or on behalf of such seller specifically for use in
such registration statement or prospectus, and provided, further, however, that
the liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the proceeds received
by such seller from the sale of Restricted Stock covered by such registration
statement.
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(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 8 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 8 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake 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 and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 8 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(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 of
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 8 but it is judicially determined (by the entry of a 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 8 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
8; then, and in each such case, each indemnitor, in lieu of indemnifying the
indemnitee, shall contribute to the amount paid or payable by such indemnitee as
a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the indemnitor and the indemnitee in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnitor and indemnitee shall be determined by
reference to, among other things whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnitor or by such indemnitee, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
an indemnitee as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnitee in
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connection with investigating or defending any such action or claim. No person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation. The
obligations of the sellers and any underwriters in this Section 8(d) to
contribute shall be several in proportion to the percentage of principal amount
of Restricted Stock registered or underwritten, as the case may be, by them and
not jointly and shall be subject to the limitations set forth in the last
sentence of Section 8(b).
9. Changes in Common Stock or Preferred Shares. If, and as often as,
there is any change in the Common Stock or the Preferred Shares by way of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock or the Preferred Shares as so changed.
10. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
11. Representations and Warranties of the Company. The Company
represents and warrants to the Investors as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
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12. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including, without
limitation, permitted transferees of any Preferred Shares or Restricted Stock),
whether so expressed or not, provided, however, that registration rights
conferred herein on the holders of Preferred Shares or Restricted Stock shall
only inure to the benefit of a transferee of Preferred Shares or Restricted
Stock if (i) there is transferred to such transferee at least 10% of the total
shares of Restricted Stock originally issued pursuant to the Purchase Agreement
to the direct or indirect transferor of such transferee or (ii) such transferee
is a partner, shareholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered in person, mailed by certified or
registered mail, return receipt requested, or sent by facsimile, addressed as
follows:
if to the Company or any other party hereto, at the address of such
party set forth in the applicable Purchase Agreement;
if to any subsequent holder of Preferred Shares or Restricted Stock, to
it at such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Preferred Shares
or Restricted Stock) or to the holders of Preferred Shares or Restricted Stock
(in the case of the Company) in accordance with the provisions of this Section
12(b).
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving regard to any conflict to
any provisions regarding conflicts of law.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least two-thirds of the outstanding shares of Restricted Stock.
(e) 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.
(f) The obligations of the Company to register shares of Restricted
Stock under Sections 4 or 5 shall terminate on September 9, 2013.
(g) If requested in writing by the underwriters for an underwritten
public offering of securities of the Company, each holder of Restricted Stock
who is a party to this Agreement shall agree not to offer, sell, transfer or
otherwise dispose of any shares of Restricted Stock or any other shares of
Common Stock (other than shares of Restricted Stock or other shares of Common
Stock being registered in such offering), (and shall not effect any short sale
of, any loan of, or any grant of any option for the purchase of, any Common
Stock), directly or
11
indirectly, without the consent of such underwriters, during the seven (7) days
prior to or within 90 days following the effective date of the registration
statement relating to such offering (or such shorter period of time that is
sufficient and appropriate, in the opinion of the managing underwriter, in order
to complete the sale and distribution of securities included in such
registration); provided, however, that all persons or entities entitled to
registration rights with respect to shares of Common Stock who are not parties
to this Agreement, all other persons or entities selling shares of Common Stock
in such offering, all persons holding in excess of 1% of the capital stock of
the Company on a fully diluted basis and all executive officers and directors of
the Company shall also have agreed not to sell publicly their Common Stock under
the circumstances and pursuant to the terms set forth in this Section 12. The
Company may impose stop transfer instructions with respect to the Common Stock
subject to the foregoing restriction during such restricted period.
(h) Notwithstanding the provisions of Section 6(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not to
exceed 90 days in any 12-month period if the Company determines in good faith
that there exists at the time material non-public information relating to the
Company which, in the reasonable opinion of the Company, should not be
disclosed, and no sales of Restricted Stock shall be made by the holders during
such period.
(i) 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 remains in effect.
(j) 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
By: /s/ D. Xxxxx Xxxxx
--------------------------------
Name: D. Xxxxx Xxxxx
Title: Vice Chairman, President and Chief
Operating Officer
CAMDEN PARTNERS STRATEGIC FUND II-A, L.P.
By: Camden Partners Strategic II, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
CAMDEN PARTNERS STRATEGIC FUND II-B, L.P.
By: Camden Partners Strategic II, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
[SIGNATURES CONT'D ON FOLLOWING PAGE]
13
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE - CONT'D]
ALLIED CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
MOLLUSK HOLDINGS, L.L.C.
By: Cephalopod Corporation, authorized member
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
BLESBOK, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
14
SCHEDULE A
LIST OF INVESTORS
Camden Partners Strategic Fund II-A, L.P.
Camden Partners Strategic Fund II-B, L.P.
Allied Capital Corporation
Mollusk Holdings, L.L.C.
Blesbok, LLC
