EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
August 7, 2000, is by and between MUSE TECHNOLOGIES, INC. (the "Company") and
KINGSBRIDGE CAPITAL LIMITED (the "Investor").
WHEREAS, the Company and the Investor have entered into that certain
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"),
pursuant to which the Company may issue shares of its common stock, par value
$.015 per share (the "Common Stock"), upon the conversion of a convertible
promissory note (the "Note") and the exercise of a warrant (the "Registrable
Securities"), as more fully set forth in the Purchase Agreement and the Exhibits
thereto;
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investor entering into the Purchase Agreement, the Company has issued to the
Investor a warrant dated as of the date hereof, exercisable from time to time
within four (4) years following the one year anniversary of the date of issuance
(the "Warrant") for the purchase of an aggregate of up to 75,000 shares of
Common Stock at a price specified in such Warrant;
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investor's agreement to enter into the Purchase Agreement, the Company has
agreed to provide the Investor with certain registration rights with respect to
the Registrable Securities as set forth herein;
NOW, THEREFORE, in consideration of the premises, the representations,
warranties, covenants and agreements contained herein, in the Warrant, and in
the Purchase Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the parties hereto agree as follows (capitalized terms used herein
and not defined herein shall have the respective meanings ascribed to them in
the Purchase Agreement):
ARTICLE I
REGISTRATION RIGHTS
Section 1.1. REGISTRATION STATEMENT.
(a) Filing of the Registration Statement. Upon the terms and subject to
the conditions set forth in this Agreement, the Company shall file with the SEC
within nine (9) months following the date hereof a registration statement on
such form chosen by the Company and deemed appropriate for the registration for
the resale by the Investor of the Registrable Securities (the "Registration
Statement").
(b) Effectiveness of the Registration Statement. The Company shall use
commercially reasonable efforts to have the Registration Statement declared
effective by the Commission as soon as practicable, but in any event no later
than twelve (12) months after the date hereof and to ensure that the
Registration Statement remains in effect throughout the term of this Agreement
as set forth in Section 4.1, subject to the terms and conditions of this
Agreement.
(c) Failure to Obtain Effectiveness of the Registration Statement. In
the event the Company fails for any reason to obtain the effectiveness of the
Registration Statement within the time period set forth in Section 1.1(b), until
the date on which the Registration Statement is declared effective by the SEC
(the "Effective Date") or such date on which all of the Registrable Securities
are freely tradable by the Investor under the Securities Act, the Company shall
pay to the Investor in respect of each calendar month (or portion thereof) prior
to the Effective Date an amount equal to two and one half of one
percent (2 1/2%) of the principal amount of the Note then outstanding, payable
monthly in arrears and on the Effective Date or such date on which all of the
Registrable Securities are freely tradable by the Investor under the Securities
Act.
(d) Failure to Maintain Effectiveness of Registration Statement. In the
event the Company fails to maintain the effectiveness of the Registration
Statement (or the underlying prospectus) throughout until the termination of the
registration rights of the Investor hereunder set forth in Section 4.1, other
than temporary suspensions as set forth in Section 1.1(e) or 2.1(h), and the
Investor holds any Registrable Securities at any time during the period of such
ineffectiveness (an "Ineffective Period"), the Company shall pay to the Investor
an amount equal to one percent (1%) of the aggregate Market Price of all of the
Registrable Securities then held by the Investor for the each month (or portion
thereof) of an Ineffective Period, payable monthly in arrears and on the first
day after the expiration of the Ineffective Period.; provided, however, that the
foregoing payments shall not apply in respect of Registrable Securities that are
otherwise freely tradable by the Investor under the Securities Act. For the
purposes of this Agreement, "Market Price" as of any date of determination shall
mean the closing trade price of the Common Stock (as reported by Bloomberg,
L.P.) as of such date.
(e) Deferral or Suspension During a Blackout Period. Sections 1.1 (c)
and (d) notwithstanding, if the Company shall furnish to the Investor notice
signed by the Chief Executive Officer of the Company stating that the Board of
Directors of the Company has, by duly authorized resolution, determined in good
faith that it would be seriously detrimental to the Company and its shareholders
for the Registration Statement to be filed (or remain in effect) and it is
therefore essential to defer the filing of such Registration Statement (or
temporarily suspend the effectiveness of such Registration Statement or use of
the related prospectus) (a "Blackout Notice"), the Company shall have the right
(i) immediately to defer such filing for a period of not more than thirty (30)
calendar days beyond the date by which such Registration Statement was otherwise
required hereunder to be filed or (ii) suspend such effectiveness for a period
of not more than thirty (30) calendar days (any such deferral or suspension
period of up to thirty (30) calendar days, a "Blackout Period"). The Investor
acknowledges that it would be seriously detrimental to the Company and its
shareholders for such Registration Statement to be filed (or remain in effect)
during a Blackout Period and therefore essential to defer such filing (or
suspend such effectiveness) during such Blackout Period and agrees to cease any
disposition of the Registrable Securities during such Blackout Period. The
Company may not utilize any of its rights under this Section 1.1(e) to defer the
filing of the Registration Statement (or suspend its effectiveness) more than
twice in any twelve (12) month period.
(f) Liquidated Damages. The Company and the Investor hereto acknowledge
and agree that the sums payable under subsections 1(c) or 1(d) above shall
constitute liquidated damages and not penalties. The parties further acknowledge
that (i) the amount of loss or damages likely to be incurred by the Investor is
incapable or is difficult to precisely estimate, (ii) the amounts specified in
such subsections bear a reasonable proportion and are not plainly or grossly
disproportionate to the probable loss likely to be incurred in connection with
any failure by the Company to obtain or maintain the effectiveness of a
Registration Statement, (iii) one of the reasons for the Company and the
Investor reaching an agreement as to such amounts was the uncertainty and cost
of litigation regarding the question of actual damages, and (iv) the Company and
the Investor are sophisticated business parties and have been represented by
sophisticated and able legal and financial counsel and negotiated this Agreement
at arm's length.
(g) Payments. All payments required to be made by the Company to the
Investor hereunder shall be by wire transfer of immediately available funds to
an account specified by the Investor.
ARTICLE II
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REGISTRATION PROCEDURES
Section 2.1. FILINGS; INFORMATION. The Company shall effect the registration
with respect to the sale of the Registrable Securities by the Investor in
accordance with the intended methods of disposition thereof. Without limiting
the foregoing, the Company in each such case will do the following as
expeditiously as possible, but in no event later than the deadline, if any,
prescribed therefor in this Agreement:
(a) The Company shall (i) prepare and file with the SEC a Registration
Statement on such form promulgated by the SEC for which the Company then
qualifies, that counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the provisions of this Agreement and in accordance
with the intended method of distribution of the Registrable Securities; (ii) use
comercially reasonable efforts to cause such filed Registration Statement to
become and to remain effective; (iii) prepare and file with the SEC 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 time period prescribed by Section 1.1(b) and in
order to effectuate the purpose of this Agreement, the Purchase Agreement and
the Warrant; and (iv) comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Investor set forth in such Registration Statement; provided,
however, that the Investor shall be responsible for the delivery of a prospectus
to the Persons to whom the Investor sells the Registable Securities after the
Effective Date.
(b) If so requested by a managing underwriter or underwriters, if any,
or the holders of a majority of the Registrable Securities being sold in
connection with the filing of the Registration Statement under the Securities
Act for the offering on a continuous or delayed basis in the future of all of
the Registrable Securities (a "Shelf Registration"), the Company shall (i)
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holders agree should
be included therein, and (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after the Company
has received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this Section 2.1(b)(ii)
that would, in the opinion of counsel for the Company, violate applicable law.
(c) In connection with the filing of a Shelf Registration, the Company
shall enter into such reasonable agreements and take all such other reasonable
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition of
such Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, the Company shall (i) make such representations and
warranties to the holders of such Registrable Securities and the underwriters,
if any, with respect to the business of the Company (including with respect to
businesses or assets acquired or to be acquired by the Company), and the
Registration Statement, prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm such representations and warranties if and when
requested; (ii) if an underwriting agreement is entered into, it shall contain
indemnification provision and procedures no less favorable to the selling
holders of such Registrable Securities and the underwriters, if any, than those
set forth herein (or such other provisions and procedures acceptable to the
holders of a majority of Registrable Securities covered by such Registration
Statement and the managing underwriters, if any); and (iii) deliver such
documents and certificates as may be reasonably requested by the holders of a
majority of the Registrable Securities being sold, their counsel and the
managing underwriters, if any, to evidence the continued validity of their
representations
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and warranties made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
(d) At least (5) calendar days prior to filing the Registration
Statement or prospectus, or any amendment or supplement thereto (excluding
amendments deemed to result from the filing of documents incorporated by
reference therein), the Company shall deliver to the Investor and to its
counsel, in accordance with the notice provisions of Section 4.8, copies of the
Registration Statement, prospectus and/or any amendments or supplements thereto
as proposed to be filed, together with exhibits thereto, which documents will be
subject to review by the Investor and such counsel, and thereafter deliver to
the Investor and such counsel, in accordance with the notice provisions of
Section 4.8, such number of copies of the Registration Statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in the Registration Statement (including each preliminary
prospectus) and such other documents or information as the Investor or counsel
may reasonably request in order to facilitate the disposition of the Registrable
Securities.
(e) The Company shall deliver, in accordance with the notice provisions
of Section 4.8, to each seller of Registrable Securities covered by the
Registration Statement such number of conformed copies of the Registration
Statement and of each amendment and supplement thereto (in each case including
all exhibits and documents incorporated by reference), such number of copies of
the prospectus contained in the Registration Statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 promulgated under the Securities Act relating to such
seller's Registrable Securities, and such other documents, as such seller may
reasonably request to facilitate the disposition of its Registrable Securities.
(f) After the filing of the Registration Statement, the Company shall
promptly notify the Investor of any stop order issued or threatened by the SEC
in connection therewith and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered.
(g) The Company shall use commercially reasonable efforts to (i)
register or qualify the Registrable Securities under such other securities or
blue sky laws of each jurisdiction in the United States as the Investor may
reasonably (in light of its intended plan of distribution) request, and (ii)
cause the Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable the
Investor to consummate the disposition of the Registrable Securities; provided,
however, that the Company will not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (g), subject itself to taxation in any such jurisdiction,
consent or subject itself to general service of process in any such jurisdiction
or change any existing business practices, benefit plans or outstanding
securities.
(h) The Company shall immediately notify the Investor upon the
occurrence of any of the following events in respect of the Registration
Statement or related prospectus in respect of an offering of Registrable
Securities: (A) receipt of any request by the SEC or any other federal or state
governmental authority for additional information, amendments or supplements to
the Registration Statement or related prospectus; (B) the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (C) receipt of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (D) the happening of any event
that makes any statement made in the Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect and that requires the making of any
changes in the Registration Statement, related prospectus or documents so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or
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omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the related
prospectus, it will not contain any 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 the light of the circumstances under which they were
made, not misleading; and (E) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate, and
the Company will promptly make available to the Investor any such supplement or
amendment to the related prospectus.
(i) The Company shall enter into customary agreements and take such
other actions as are reasonably required in order to expedite the disposition of
such Registrable Securities (whereupon the Investor may, at its option, require
that any or all of the representations, warranties and covenants of the Company
also be made to and for the benefit of the Investor).
(j) The Company shall make available to the Investor (and will deliver
to Investor's counsel), subject to restrictions imposed by the United States
federal government or any agency or instrumentality thereof, copies of all
correspondence between the SEC and the Company, its counsel or its auditors
concerning the Registration Statement and will also make available for
inspection by the Investor and any attorney, accountant or other professional
retained by the Investor (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers
and employees to supply all information reasonably requested by any Inspectors
in connection with the Registration Statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless the
disclosure or release of such Records is requested or required pursuant to oral
questions, interrogatories, requests for information or documents or a subpoena
or other order from a court of competent jurisdiction or other process;
provided, however, that prior to any disclosure or release pursuant to the
immediately preceding clause, the Inspectors shall provide the Company with
prompt notice of any such request or requirement so that the Company may seek an
appropriate protective order or waive such Inspectors' obligation not to
disclose such Records; and, provided, further, that if failing the entry of a
protective order or the waiver by the Company permitting the disclosure or
release of such Records, the Inspectors, upon advice of counsel, are compelled
to disclose such Records, the Inspectors may disclose that portion of the
Records that counsel has advised the Inspectors that the Inspectors are
compelled to disclose; provided, however, that upon any such required
disclosure, such Inspector shall use his or her best efforts to obtain
reasonable assurances that confidential treatment will be afforded such
information. The Investor agrees that information obtained by it solely as a
result of such inspections (not including any information obtained from a third
party who, insofar as is known to the Investor after reasonable inquiry, is not
prohibited from providing such information by a contractual, legal or fiduciary
obligation to the Company) shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Company or
its affiliates unless and until such information is made generally available to
the public. The Investor further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(k) To the extent required by law or reasonably necessary to effect a
sale of Registrable Securities in accordance with prevailing business practices
at the time of any sale of Registrable Securities pursuant to the Registration
Statement, the Company shall deliver to the Investor a signed counterpart,
addressed to the Investor, of (1) an opinion or opinions of counsel to the
Company, and (2) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as the Investor therefor reasonably requests.
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(l) The Company shall otherwise comply with all applicable rules and
regulations of the SEC, including, without limitation, compliance with
applicable reporting requirements under the Exchange Act.
(m) The Company shall appoint a transfer agent and registrar for all of
the Registrable Securities covered by such Registration Statement not later than
the effective date of such Registration Statement.
(n) The Company may require the Investor to promptly furnish in writing
to the Company such information as may be legally required in connection with
such registration including, without limitation, all such information as may be
requested by the SEC or the National Association of Securities Dealers or any
state securities commission. The Investor agrees to provide such information
requested in connection with such registration within five (5) calendar days
after receiving such written request and the Company shall not be responsible
for any delays in obtaining or maintaining the effectiveness of the Registration
Statement caused by the Investor's failure to timely provide such information.
Section 2.2. REGISTRATION EXPENSES. The Company shall pay all registration
expenses incurred in connection with the Registration Statement (the
"Registration Expenses"), including, without limitation: (i) all registration,
filing, securities exchange listing and fees required by the National
Association of Securities Dealers, (ii) all registration, filing, qualification
and other fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) all word processing,
duplicating, printing, messenger and delivery expenses, (iv) the Company's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v) the fees
and expenses incurred by the Company in connection with the listing of the
Registrable Securities, (vi) reasonable fees and disbursements of counsel for
the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any special
audits or comfort letters or costs associated with the delivery by independent
certified public accountants of such special audit(s) or comfort letter(s)
requested pursuant to Section 2.1(k) hereof), (vii) the fees and expenses of any
special experts retained by the Company in connection with such registration,
(viii) all reasonable fees and expenses of counsel for the Investor incurred in
connection with the review, and assistance in preparation, of the Registration
Statement up to $2,500, (ix) premiums and other costs of the Company for
policies of insurance against liabilities arising out of any public offering of
the Registrable Securities being registered, and (x) any fees and disbursements
of underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting fees, discounts, transfer taxes or commissions, if any,
attributable to the sale of Registrable Securities, which shall be payable by
each holder of Registrable Securities pro rata on the basis of the number of
Registrable Securities of each such holder that are included in a registration
under this Agreement.
ARTICLE III
INDEMNIFICATION
Section 3.1. INDEMNIFICATION. The Company agrees to indemnify and hold harmless
the Investor, its partners, Affiliates, officers, directors, employees and duly
authorized agents, and each Person or entity, if any, who controls the Investor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, together with the partners, Affiliates, officers, directors,
employees and duly authorized agents of such controlling Person or entity
(collectively, the "Controlling Persons"), from and against any loss, claim,
damage, liability, costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements and costs and expenses of investigating and
defending any such claim) (collectively, "Damages"), joint or several, and any
action or proceeding in respect thereof to which the Investor, its partners,
affiliates, officers, directors, employees and duly authorized agents, and
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any Controlling Person, may become subject under the Securities Act or
otherwise, as incurred, insofar as such Damages (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, or in any preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement relating to the Registrable Securities or
arises out of, or are based upon, any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein under the circumstances not misleading, and shall reimburse
the Investor, its partners, affiliates, officers, directors, employees and duly
authorized agents, and each such Controlling Person, for any legal and other
expenses reasonably incurred by the Investor, its partners, affiliates,
officers, directors, employees and duly authorized agents, or any such
Controlling Person, as incurred, in investigating or defending or preparing to
defend against any such Damages or actions or proceedings; provided, however,
that the Company shall not be liable to the extent that any such Damages arise
out of the Investor's (or any other indemnified Person's) failure to send or
give a copy of the final prospectus or supplement (as then amended or
supplemented) to the persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such
statement or omission was corrected in such final prospectus or supplement;
provided, further, that the Company shall not be liable to the extent that any
such Damages arise out of or are based upon the gross negligence or bad faith of
the Investor or any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, or any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Investor or any other person who participates as
an underwriter in the offering or sale of such securities, in either case,
specifically stating that it is for use in the preparation thereof.
Section 3.2. CONDUCT OF INDEMNIFICATION PROCEEDINGS. All claims for
indemnification under Section 3.1 shall be asserted and resolved in accordance
with the provisions of Section 6.2 of the Purchase Agreement.
Section 3.3. ADDITIONAL INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this Article 3 (with appropriate
modifications) shall be given by the Company with respect to any required
registration or other qualification of securities under any federal or state law
or regulation of any governmental authority other than the Securities Act. The
provisions of this Article III shall be in addition to any other rights to
indemnification, contribution or other remedies which an Indemnified Party may
have pursuant to law, equity, contract or otherwise.
Section 3.4. CONTRIBUTION. If the indemnification provided for in this Article
III is unavailable to the Indemnified Parties in respect of any Damages referred
to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Damages as between the Company on the one hand and the
Investor on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of the Investor in connection with such
statements or omissions, as well as other equitable considerations. The relative
fault of the Company on the one hand and of the Investor on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Investor agree that it would not be just and equitable if
contribution pursuant to this Section 3.4 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately
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preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the Damages referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, 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 Section 3.4, the Investor shall in no event be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of the Investor were sold to the public (less
underwriting discounts and commissions) exceeds the amount of any damages which
the Investor has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
ARTICLE IV
MISCELLANEOUS
Section 4.1. TERM. The registration rights provided to the holders of
Registrable Securities hereunder shall terminate on the earlier of the date that
is two years after the date hereof or such time as the Registable Securities
have been sold by the Investor or are otherwise freely tradable under the
Securities Act. Notwithstanding the foregoing, paragraphs (c) and (d) of Section
1.1, Article III, Section 4.7, and Section 4.8 shall survive the termination of
this Agreement.
Section 4.2. RULE 144. The Company will file in a timely manner, information,
documents and reports in compliance with the Securities Act and the Exchange Act
and will, at its expense, promptly take such further action as holders of
Registrable Securities may reasonably request to enable such holders of
Registrable Securities to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act ("Rule 144"), as such Rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the SEC. If
at any time the Company is not required to file such reports, it will, at its
expense, forthwith upon the written request of any holder of Registrable
Securities, make available adequate current public information with respect to
the Company within the meaning of paragraph (c)(2) of Rule 144 or such other
information as necessary to permit sales pursuant to Rule 144. Upon the request
of the Investor, the Company will deliver to the Investor a written statement,
signed by the Company's principal financial officer, as to whether it has
complied with such requirements.
Section 4.3. CERTIFICATE. The Company will, at its expense, forthwith upon the
request of any holder of Registrable Securities, deliver to such holder a
certificate, signed by the Company's principal financial officer, stating (a)
the Company's name, address and telephone number (including area code), (b) the
Company's Internal Revenue Service identification number, (c) the Company's
Commission file number, (d) the number of shares of each class of Stock
outstanding as shown by the most recent report or statement published by the
Company, and (e) whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least ninety (90) days prior to the
date of such certificate and in addition has filed the most recent annual report
required to be filed thereunder.
Section 4.4. AMENDMENT AND MODIFICATION. Any provision of this Agreement may be
waived, provided that such waiver is set forth in a writing executed by both
parties to this Agreement. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the holders of a majority
of the then outstanding Registrable Securities. Notwithstanding the foregoing,
the waiver of any provision hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and does not directly or
indirectly affect the rights of other holders of Registrable Securities may be
given by holders of at least a majority of the
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Registrable Securities being sold by such holders; provided that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence. No course
of dealing between or among any Person having any interest in this Agreement
will be deemed effective to modify, amend or discharge any part of this
Agreement or any rights or obligations of any person under or by reason of this
Agreement.
Section 4.5. SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. The Investor may
assign its rights under this Agreement to any subsequent holder of the
Registrable Securities (unless sold pursuant to an effective registration
statement or in accordance with Rule 144 under the Securities Act), provided
that the Company shall have the right to require any holder of Registrable
Securities to execute a counterpart of this Agreement as a condition to such
holder's claim to any rights hereunder. This Agreement, together with the
Purchase Agreement, the Note and the Warrant sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of any and every
nature among them.
Section 4.6. SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any party.
Section 4.7. NOTICES. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be in writing and
shall be (i) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (ii) delivered by reputable air courier service with
charges prepaid, or (iii) transmitted by hand delivery, telegram or facsimile,
addressed as set forth below or to such other address as such party shall have
specified most recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed effective (a) upon
hand delivery or delivery by facsimile, with accurate confirmation generated by
the transmitting facsimile machine, at the address or number designated below
(if delivered on a trading day during normal business hours where such notice is
to be received), or the first trading day following such delivery (if delivered
other than on a trading day during normal business hours where such notice is to
be received) or (b) on the second trading day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company:
Muse Technologies, Inc.
0000 Xxxxxxxx, XX, Xxxxx 000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx.Xxxxx X. Xxxxx, President
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
9
Telephone: (000)-000-0000
Facsimile: (000)-000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
if to the Investor:
Kingsbridge Capital Limited
c/o Kingsbridge Corporate Services Limited
Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxxxx xx Xxxxxxx
Telephone: 000-000-00-000-000
Facsimile: 011-353-45-482-003
Attention: Xx. Xxxx Xxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 4.8 by giving at least ten (10) days' prior
written notice of such changed address or facsimile number to the other party
hereto.
Section 4.8. GOVERNING LAW. This Agreement shall be construed under the laws of
the State of New York.
Section 4.9. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
Section 4.10. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original instrument and all
of which together shall constitute one and the same instrument.
Section 4.11. FURTHER ASSURANCES. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
Section 4.12. ABSENCE OF PRESUMPTION. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.
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IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed by the undersigned, thereunto duly authorized, as of
the date first set forth above.
MUSE TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
President
KINGSBRIDGE CAPITAL LIMITED
By: /s/ Valentine X'Xxxxxxxx
--------------------------------
Valentine X'Xxxxxxxx
Director
