EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of May
18, 2005, by and among Terra Insight Corporation, a Delaware corporation
("Terra"), CompuPrint, Inc., a North Carolina corporation ("CPPT") (the term the
"Company" used herein refers Terra and CPPT giving effect to a reorganization
involving the two corporations (the "Reorganization")), and the person(s) set
forth on the signature page hereto (the "Stockholder").
RECITAL:
The Company and Stockholders are parties to a certain Securities
Purchase Agreement of even date (the "Purchase Agreement"), whereby Stockholders
purchased such number of Units of shares of CPPT's common stock (the
"Securities") at the price of $100,000 per Unit as indicated in the Purchase
Agreement. Capitalized terms used but not defined in this Agreement have the
meanings assigned to such terms in the Purchase Agreement. As an inducement to
Stockholders to enter into the Purchase Agreement, the Company agrees with
Stockholders as follows:
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 Affiliates. "Affiliate" shall mean any person that,
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, any party specified in this
Agreement.
1.2 Commission. "Commission" shall mean the United States
Securities Exchange Commission or any other federal agency at the time
administering the Securities Act.
1.3 Common Shares. "Common Shares" shall mean the shares of
Common Stock issued at any time to the Stockholders pursuant to the Purchase
Agreement.
1.4 Exchange Act. "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, or any similar Federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
1.5 Person. "Person" shall mean any individual, partnership,
limited liability company, corporation, trust or other entity.
1.6 Register; Registered; Registration. "Register,"
"registered" and "registration" shall refer to a registration effected by
preparing and filing a registration statement in compliance with the Securities
Act, and the declaration or ordering of the effectiveness of such registration
statement by the Commission.
1.7 Registrable Shares. "Registrable Shares" shall mean the
Common Shares, and all shares of the Company's Common Stock issued as a dividend
on, or other distribution with respect to, or in exchange or in replacement of,
the Common Shares, until, in the case of any such security, the earliest of (A)
its effective registration under the Securities Act and resale in accordance
with the registration statement covering it, (B) the earliest date all of such
shares may be sold pursuant to Rule 144(k) under the Securities Act, or (C) its
sale pursuant to Rule 144 or a sale otherwise exempt from the registration
rights requirements of the Securities Act.
1
1.8 Registration Expenses. "Registration Expenses" shall mean
all expenses incurred by the Company in complying with Section 3, including all
registration and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company, state securities' law fees and
expenses, and the expense of any special consents and advice or similar audit
services of independent auditors incident to or required by any such
registration.
1.9 Securities Act. "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
from time to time.
1.10 Selling Expenses. "Selling Expenses" shall mean any
underwriting discounts and selling commissions associated with the sale of
Registrable Securities by a Holder hereunder. Selling Expenses are and shall be
the responsibility of the Holder.
2. RESTRICTIONS ON TRANSFER.
2.1 Restrictive Legend. Until such time as the Common Shares
have been registered under the Securities Act of 1933, as amended, and may be
sold pursuant to such registration statement, or otherwise may be sold pursuant
to Rule 144 without any restriction as to the number of securities as of a
particular date that can then be immediately sold, the Common Shares shall bear
a restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such Common
Shares):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities may not be
sold, transferred or assigned in the absence of an effective
registration statement for the securities under said Act, or an opinion
of counsel, in form, substance and scope customary for opinions of
counsel in comparable transactions, that registration is not required
under said Act or unless sold pursuant to Rule 144 under said Act.
2.2 Notice of Proposed Transfers. Unless there is an effective
registration statement under the Securities Act covering a proposed transfer, a
Stockholder shall notify the Company of its intention to affect a transfer of
any of its Common Shares. Such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied (except that the requirements set forth in the balance of this
sentence need not be complied with where the proposed transaction complies with
Rule 144 as long as the Company is furnished with evidence of compliance with
such rule) by:
(a) an unqualified written opinion of legal counsel
which is reasonably satisfactory to the Company addressed to the Company's
counsel, to the effect that the proposed transfer of the Common Shares may be
effected without registration of the Securities Act; or
(b) a "no action" letter from the Commission to the
effect that the distribution of such securities without registration will not
result in a recommendation by the staff of the Commission that action be taken
with respect thereto;
provided, that this Section 2.2 shall not require a legal opinion or "no action
letter" in connection with any sale or transfer to an immediate family member or
to an entity controlled by or under common control with the Stockholder.
2.3 Compliance. Each certificate evidencing the Common Shares
transferred as above provided shall bear the appropriate restrictive legend set
forth in Section 2.1, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for the Company such legend is
not required in order to establish compliance with any provisions of the
Securities Act or applicable state securities laws.
2
3. REGISTRATION RIGHTS
3.1 Shelf Registration.
(a) The Company shall prepare and file with the
Commission as soon as practicable but in no event later than ninety (90) days
after the final Closing Date of the offering described in the March 31, 2005
Private Placement Memorandum of Terra, a registration statement (the "Initial
Shelf Registration Statement," and together with any Subsequent Shelf
Registration Statement (as defined below), including, in each case, the
prospectus, amendments and supplements to such registration statements,
including post-effective amendments, all exhibits, and all materials
incorporated by reference or deemed to be incorporated by reference in such
registration statements, are herein collectively referred to as the "Shelf
Registration Statement") for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act") (the "Shelf Registration"), registering the resale from time
to time by a Stockholder of all of the Registrable Shares. The Company shall use
reasonable best efforts to cause such Initial Registration Statement to become
effective within 180 days of the final Closing Date. The Initial Shelf
Registration Statement shall be on an appropriate form under the Securities Act
permitting registration of such Registrable Securities for resale by a
Stockholder from time to time as set forth in the Initial Shelf Registration
Statement. Thereafter, the Company shall (a) use its best efforts, subject to
receipt of necessary information from the Stockholders, to cause the Shelf
Registration Statement to become effective as soon as practicable after its
filing, (b) prepare and file with the Commission any amendments or supplements
to the Shelf Registration Statement and the prospectus used in connection
therewith that may be necessary to keep the Shelf Registration Statement
effective throughout the period (the "Registration Period") until the earlier of
(i) such date that all of the Registrable Shares have been sold by the
Stockholders, (ii) such time that all of the Registrable Shares have become
eligible for sale pursuant to paragraph (k) of Rule 144 under the Securities Act
("Rule 144"), or (iii) such time that all of the Registrable Shares then held by
a Holder can be sold in reliance upon an exemption from registration under the
Federal securities laws pursuant to Rule 144, (c) furnish to the Stockholders
such number of copies of prospectuses in conformity with the requirements of the
Securities Act and other documents as the Stockholder may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Shares by the Stockholders and (d) bear all expenses in connection with the
foregoing procedures, other than Selling Expenses and expenses of counsel or
other advisors, if any, to the Stockholders.
(b) If the Initial Shelf Registration Statement or
any Subsequent Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period (other than because all
Registrable Securities registered thereunder have been resold pursuant thereto
or have otherwise ceased to be Registrable Securities), the Company shall use
its best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend such Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Subsequent
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act.
(d) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(e) The Company shall (i) file the Initial Shelf
Registration Statement within the timeline set forth in Section 3.1(a), (ii)
file a request for acceleration in accordance with Rule 461 under the Securities
Act within five business days after being notified by the Commission that the
Initial Shelf Registration
3
Statement or Shelf Registration Statement, as the case may be, will not be
reviewed or will not be subject to further review, (iii) promptly file a
pre-effective amendment and otherwise respond in writing to address, in good
faith, comments made by the Commission in connection with any review of the
Shelf Registration Statement and shall use its best efforts to do so after the
receipt of those comments or notice from the Commission that an amendment is
required for the Shelf Registration Statement, or (iv) maintain the
effectiveness of the Shelf Registration Statement for all Registrable Shares
after it is declared effective. In the event the Company fails to perform its
obligations pursuant to this provision, for each thirty (30) days that such
Initial Shelf Registration Statement is not filed the Company shall pay the
Stockholders liquidated damages equal to two percent (2%) of the total issued
share capital of the Company in Common Stock. With respect to the aforementioned
liquidated damage award, each Stockholder shall receive shares of Common Stock,
pro rata, based on the number of Registrable Shares owned by such Stockholder.
3.2 Registration Procedures. In connection with the Shelf
Registration contemplated by Section 3.1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to Stockholders,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and each amendment thereof and each supplement, if any,
to the prospectus included therein and the Company shall use its best efforts to
reflect in the Shelf Registration Statement, when so filed with the Commission,
such comments as the Stockholders may reasonably and timely propose.
(b) The Company shall give written notice to
Stockholders (which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or
any amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its
legal counsel of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that
requires the Company to make changes in the Shelf Registration Statement or the
prospectus in order that the Shelf Registration Statement or the prospectus do
not contain an untrue statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus, in light of the circumstances under which they
were made) not misleading.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale.
(d) The Company shall make available to Stockholders,
without charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Stockholders so request, all exhibits thereto (including those, if
any, incorporated by reference).
4
(e) The Company shall, during the Effectiveness
Period, deliver to Stockholders, without charge, except for normal copying and
actual delivery costs, as many copies of the prospectus (including each
preliminary prospectus, if any) included in the Shelf Registration Statement and
any amendment or supplement thereto as Stockholders may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by Stockholders in connection
with the offering and sale of the Registrable Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(f) Prior to any public offering of the Registrable
Securities pursuant to any Shelf Registration Statement the Company shall
register or qualify or cooperate with the Stockholders and its counsel in
connection with the registration or qualification of the Registrable Securities
for offer and sale under the securities or "blue sky" laws of such states of the
United States as the Stockholders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Registrable Securities covered by such Shelf
Registration Statement, provided, however, that in no event shall the Company be
required to qualify to do business as a foreign corporation in any jurisdiction
where it would not, but for the requirements of this paragraph (f), be required
to be so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction.
(g) The Company shall cooperate with Stockholders to
facilitate the timely preparation and delivery of certificates representing the
Registrable Securities to be sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales of
the Registrable Securities pursuant to such Shelf Registration Statement.
Stockholders shall provide such representations as may be reasonably requested
by the Company's transfer agent in this regard.
(h) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3.2(b) above during the period for which
the Company is required to maintain an effective Shelf Registration Statement,
the Company shall promptly prepare and file a post-effective amendment to the
Shelf Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Stockholders, the
prospectus will not contain 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, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Stockholders in accordance with
paragraphs (ii) through (v) of Section 3.2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Stockholders shall suspend use of such prospectus and, if so directed by the
Company, destroy or deliver to the Company all copies then in Stockholders'
possession of the prospectus covering such Registrable Securities that was in
effect at the time of such notice (such period during which the availability of
the Shelf Registration Statement and any related prospectus is suspended being a
"Deferral Period"). The period of effectiveness of the Shelf Registration
Statement provided for in Section 3.1(a) above shall be extended by the number
of days from and including the date of the giving of such notice to and
including the date when the Holders of Registrable Securities shall have
received such amended or supplemented prospectus pursuant to this Section
3.2(h). The Company will use its best efforts to ensure that the use of the
prospectus may be resumed as promptly as is practicable. The Company shall be
entitled to exercise its right under this Section 3.2(h) to suspend the
availability of the Shelf Registration Statement or any prospectus for one or
more periods not to exceed 30 days in any 3 month period and not to exceed, in
the aggregate, 90 days in any 12 month period.
(i) The Company shall prepare and file with the
Commission such amendments and post-effective amendments to each Shelf
Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective for the applicable period specified in Section
3.1(a) and shall cause the related prospectus to be supplemented by any required
prospectus supplement to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act. The Company will comply with
all rules and regulations of the Commission to the extent and so long as they
are applicable to the Shelf Registration.
(j) The Company may require Stockholders to furnish
to the Company such information regarding the Stockholders and the distribution
of the Registrable Securities as the Company may from time to time reasonably
require for inclusion in the Shelf Registration Statement.
5
(k) The Company shall (i) make reasonably available
for inspection by Stockholders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by Stockholders or any such underwriter, subject to a
confidentiality agreement acceptable to the Company, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by Stockholders
or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act.
(l) The Company shall use its best efforts to take
all other steps necessary to effect the registration of the Registrable
Securities covered by a Shelf Registration Statement contemplated hereby.
(m) The Company shall as promptly as practicable (if
reasonably requested by Stockholders), incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement such information as
Stockholders or shall, on the basis of an opinion of nationally recognized
counsel experienced in such matters, determine to be required to be included
therein and make any required filings of such prospectus supplement or such
post-effective amendment; provided that the Company shall not be required to
take any actions under this Section 3.2(m) that are not, in the reasonable
opinion of counsel for the Company, in compliance with applicable law.
3.3 Expenses of Registration. The Company shall pay all
Registration Expenses incurred in connection with the performance of the
Company's obligations under this Agreement.
4. INDEMNIFICATION
4.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless Stockholders and their Affiliates, against all
claims, losses, damages and liabilities, joint or several (or actions in respect
thereof, and including, but not limited to, any claims, losses, damages,
liabilities or actions relating to purchases and sales of the Registrable
Securities), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, to which any of them may become subject
under the Securities Act, the Exchange Act or other federal or state law,
arising out of or based on the following:
(a) any untrue statement or alleged untrue statement
of a material fact contained in any such registration statement, preliminary
prospectus, prospectus, offering circular or other similar document (including
any related registration statement, notification or the like, and including any
amendment or supplement thereto) incident to any such registration, 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;
(b) any violation by the Company of any federal,
state or common law rule or regulation applicable to the Company in connection
with any such registration, qualification or compliance; and
(c) any legal and any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, as incurred related to the foregoing.
4.2 Indemnification by Stockholders. If Registrable Securities
held by a Stockholder are included in the securities as to which such
registration is being effected, the Stockholder shall indemnify the Company,
each of its officers and directors, each underwriter and each person who
controls any underwriter, and each person, if any, who controls the Company or
any such underwriter within the meaning of Section 15 of the Securities Act, and
each person affiliated with or retained by the Company and who may be subject to
liability under any applicable securities laws, against all claims, losses,
damages and liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened, to
which they may become subject under the Securities Act or other federal or state
law, arising out of or based on:
(a) any untrue statement or alleged untrue statement
of a material fact contained in any such registration statement, prospectus,
offering circular or other similar 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
6
misleading in the light of the circumstances under which they were made, 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 an instrument duly executed by Stockholders and stated to be
specifically for use therein; and
(b) any legal and other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action, as incurred.
4.3 Limitation on the Indemnification Obligation.
(a) No party required to provide indemnification
under this Section 4 (the "Indemnifying Party") shall be liable, and shall have
any indemnification obligation hereunder, for any amounts paid in settlement by
any party entitled to indemnification hereunder (the "Indemnified Party") of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Indemnifying Party (which consent shall not be
unreasonably withheld).
(b) The Company shall not be liable under Section 4.1
hereof for any such claim, loss, damage, liability or expense to the extent it
arises out of or is based on any untrue statement or omission, made in reliance
on and in conformity with written information furnished to the Company by an
instrument duly executed by Stockholders, underwriter or controlling person and
stated to be specifically for use therein.
4.4 Indemnification Procedure. Each Indemnified Party shall
give notice to the Indemnifying Party promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided the Indemnifying Party acknowledges its
obligations to indemnify the Indemnified Party with respect to the claim and
provided further that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section 4
except to the extent that the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action and
provided further, that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and different
defenses but shall bear the expense of such defense nevertheless. 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. If the
Indemnifying Party does not assume the defense of any claim or proceeding
resulting therefrom, the Indemnified Party may defend against such claim or
proceeding as the Indemnified Party may deem appropriate and may settle such
claim or proceeding in such manner as the Indemnified Party may deem
appropriate, all without prejudice to its right to indemnification hereunder.
4.5 Contribution, Allocation, etc. If the indemnification
provided for in this Section 4 is unavailable or insufficient to hold harmless
an Indemnified Party under such paragraphs 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 such 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 underwriters and Stockholders, 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 Section 4.4. 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 underwriters or Stockholders, on the other,
and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
Stockholders agree that it would not be just and equitable if contributions
pursuant to this paragraph were determined by pro rata allocation or by any
other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an
7
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 paragraph, Stockholders shall not be
required to contribute any amount in excess of the lesser of (i) the proportion
that the public offering price of shares sold by Stockholders under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by
Stockholders for the sale of Registrable Shares covered by such registration
statement and (ii) the amount of any damages which it 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.
5. MISCELLANEOUS PROVISIONS.
5.1 No Transfer of Registration Rights. The registration
rights granted under this Agreement may be assigned or otherwise conveyed by
Stockholders provided that the Company is given written notice that such right
has been transferred, stating the name and address of said assignee or conveyee,
identifying the securities will respect to which such registration rights are
being assigned or conveyed.
5.2 Authorization; Enforcement. Each of Terra and CPPT has all
requisite corporate power and authority to enter into and perform this Agreement
and to consummate the transactions contemplated hereby and thereby and to issue
the Securities, in accordance with the terms hereof and thereof. The execution
and delivery of this Agreement by Terra and CPPT and the consummation by them of
the transactions contemplated hereby and thereby have been duly authorized by
the respective Board of Directors of Terra and CPPT. This Agreement has been
duly executed and delivered by Terra and CPPT by their authorized
representatives, and, as to each, such authorized representative is the true and
official representative with authority to sign this Agreement and the other
documents executed in connection herewith and bind Terra and CPPT accordingly.
This Agreement constitutes a legal, valid and binding obligation of Terra and
CPPT enforceable against Terra and CPPT in accordance with its terms.
5.3 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without giving effect to conflict of laws or any other rules or principles which
may require the application of the laws of any other jurisdiction.
5.4 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to Stockholders, upon any breach or default by
the Company under this Agreement, shall impair any such right, power or remedy
of Stockholders nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereunder occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of Stockholders or any breach or default under this Agreement, or any
waiver on the part of Stockholders of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to Stockholders, shall be cumulative
and not alternative.
5.5 Rule 144. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time, the Company is not required to file
such reports, it will, upon the request of Stockholders, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rule 144 under the Securities Act. The Company covenants that it
will take such further action as Stockholders may reasonably request, all to the
extent required from time to time to enable Stockholders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144. Upon the request of Stockholders, the
Company shall deliver to Stockholders a written statement as to whether it has
complied with such filing requirements. Notwithstanding the foregoing, nothing
in this Section shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act if not otherwise registered.
8
5.6 Remedies. Each of the parties hereto acknowledges and
agrees that any failure by a party to perform its obligations hereunder or
otherwise breach this Agreement, irreparable injury may occur for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, a party may
obtain such relief as may be required to specifically enforce the other party's
obligations hereunder.
5.7 No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to Stockholders in this
Agreement or otherwise conflicts with the provisions hereof. The Company
represents and warrants that the rights granted to Stockholders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to the
holders of securities of the Company under any agreement in effect on the date
hereof.
5.8 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements, correspondence, arrangements
and understandings relating to the subject matter hereof.
5.9 Binding Effect. All of the terms, provisions and
conditions hereof shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto, and their respective heirs, personal
representatives, successors and assigns.
5.10 Headings; Construction. The headings contained herein are
for the purposes of convenience only, and will not be deemed to constitute a
part of this Agreement or to affect the meaning or interpretation of this
Agreement in any way. Unless the context clearly states otherwise, the use of
the singular or plural in this Agreement shall include the other and the use of
any gender shall include all others. The parties have participated jointly in
the negotiation and drafting of this Agreement. If any ambiguity or question of
intent or interpretation arises, no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. All references herein to Sections shall refer to
this Agreement unless the context clearly otherwise requires.
5.11 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of receipt of a facsimile transmission, (b) confirmed delivery by a
standard overnight carrier or when delivered by hand or (c) the expiration of
five (5) business days (or seven (7) business days where the addressee is not in
the United States) after the day when mailed by certified or registered mail,
postage prepaid, to:
If to Terra:
Attn.: Xxxxx Xxxxxxxxx, Chief Executive Officer
Terra Insight Corporation
c/o Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
Attn.: Xxx Xxxxxxx, Esq.
Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
9
If to CPPT:
Attn.: Xxxxx Xxxxxxxxx
CompuPrint, Inc.
c/o Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
Attn.: Xxx Xxxxxxx, Esq.
Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
And a second copy (which shall not constitute notice)
to:
Attn.: Xxxx X. Xxxxxxxxxx, Esq.
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax No. 000-000-0000
If to Stockholder:
At the address and facsimile number listed on the
signature page of the Purchase Agreement.
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner.
5.12 Severability of Provisions. If a court in any proceeding
holds any provision of this Agreement or its application to any person or
circumstance invalid, illegal or unenforceable, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it was held to be invalid, illegal or unenforceable, shall not be
affected, and shall be valid, legal and enforceable to the fullest extent
permitted by law, but only if and to the extent such enforcement would not
materially and adversely frustrate the parties' essential objectives as
expressed in this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties intend that the court add to this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.
5.13 No Third Party Beneficiaries. This Agreement does not
create, and will not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
5.14 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW,
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO
DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY
RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY
JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY
ARISING FROM ANY SOURCE INCLUDING, BUT NOT LIMITED TO, THE CONSTITUTION OF THE
UNITED STATES OR ANY STATE THEREIN, COMMON LAW OR ANY APPLICABLE STATUTE OR
REGULATIONS. EACH PARTY HERETO ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY
WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.
10
5.15 Amendment. This Agreement may be amended, modified,
superseded, or canceled only by a written instrument signed by all of the
parties hereto and any of the terms, provisions and conditions hereof may be
waived, only by a written instrument signed by the waiving party.
5.16 Counterparts. This Agreement may be executed in any
number of counterparts and each such counterpart shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
TERRA INSIGHT CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
COMPUPRINT, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: /s/ Xxxxx X. Xxxxxxx
Title: President
FOR AND ON BEHALF OF
ZEBRA STRATEGIC HOLDINGS LIMITED
Signature of Stockholder
Print Name: Xxxxx Xxxxxx Xxxxxx
-----------------------------------------
Authorised Signatory
12
