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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as
of November 30, 2000, by and among OMNIS TECHNOLOGY CORPORATION, a Delaware
corporation (the "COMPANY") and the undersigned individuals and entities
(collectively, the "HOLDERS").
RECITALS
WHEREAS, the Company, Raining Merger Sub, Inc., a Delaware
corporation, PickAx, Inc., a Delaware corporation, and certain of the Holders
are parties to the Agreement and Plan of Merger dated as of August 23, 2000 (the
"MERGER AGREEMENT"), which provides that as a condition to the closing of the
Merger (as such term is defined in the Merger Agreement) of PickAx and Raining
Merger Sub, Inc., this Agreement must be executed and delivered;
WHEREAS, the Company desires to grant, and the Holders desire to
be granted, the rights created herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as follows:
1. Registration Rights.
The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "ACT" means the Securities Act of 1933, as
amended.
(b) The term "COMMON STOCK" means the Common Stock of
the Company.
(c) The term "FORM S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(d) The term "HOLDER" means any person owning
Registrable Securities or any assignee thereof in accordance with Section 1.11
hereof and the Merger Agreement. With respect to unexercised Warrant Shares,
"Holder" means the holder of the respective Warrant.
(e) The term "1934 ACT" means the Securities Exchange
Act of 1934, as amended.
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(f) The term "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(g) The term "REGISTRABLE SECURITIES" means (1) the
Common Stock of the Company issuable or issued to the Holders in connection with
the Merger, (2) the Warrant Shares and (3) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security that is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, the shares referenced in (1) and
(2) above, excluding in all cases, however, any Registrable Securities sold by a
person (x) in a transaction in which his rights under this Section 1 are not
assigned, (y) pursuant to a registration statement that has been declared
effective and such Registrable Securities have been disposed of pursuant to such
effective registration statement, or (z) in a transaction in which such
Registrable Securities are sold pursuant to Rule 144 (or any similar provision
then in force) under the Act.
(h) The term "SEC" shall mean the Securities and
Exchange Commission.
(i) The term "WARRANTS" shall mean the warrants to
purchase Common Stock of the Company delivered in exchange for the PickAx
Warrants (as such term is defined in the Merger Agreement) in connection with
the Merger.
(j) The term "WARRANT SHARES" shall mean the Common
Stock of the Company issued or issuable upon exercise of the Warrants.
1.2 Request for Registration.
(a) Subject to the conditions of this Section 1.2, if
the Company shall receive at any time six (6) months after the date of this
Agreement a written request from the Holders of fifty percent (50%) or more of
the Registrable Securities then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Act covering the registration of
Registrable Securities, then the Company shall, within twenty (20) days of the
receipt thereof, give written notice of such request to all Holders, and subject
to the limitations of this Section 1.2, use best efforts to effect, as soon as
practicable, the registration under the Act of all Registrable Securities that
the Holders request to be registered in a written request received by the
Company within twenty (20) days of the mailing of the Company's notice pursuant
to this Section 1.2(a). The Holders may exercise their rights under this Section
1.2 one time.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise
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the Company as a part of their request made pursuant to this Section 1.2 and the
Company shall include such information in the written notice referred to in this
Section 1.2(b). In such event the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company).
(c) Notwithstanding any other provision of this Section
1.2, if the underwriter advises the Company that marketing factors require a
limitation of the number of securities underwritten, then the Company shall so
advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting, if any, shall be allocated to the Holders of such Registrable
Securities on a pro rata basis based on the number of (x) Registrable Securities
held by all such Holders (including the Initiating Holders) and (y) securities
of the Company held by other holders that have the right as of the date hereof
to require the Company to register securities on a registration statement filed
pursuant to this Section 1.2; provided, that no Registrable Securities (or
securities referred to in clause (y) above) shall be excluded unless and until
all other securities of the Company, including securities issued for the account
of the Company, have been excluded. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
(d) The Company shall not be required to effect a
registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected a
registration of Registrable Securities pursuant to this Section 1.2, and such
registration has been declared or ordered effective; or
(iii) during the period starting with the date
ninety (90) days prior to the Company's good faith estimate of the date of the
filing of, and ending on a date one hundred eighty (180) days following the
effective date of, a Company-initiated registration subject to Section 1.3
below, provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective; or
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(iv) if the Initiating Holders propose to
dispose of Registrable Securities that may be registered on Form S-3 pursuant to
Section 1.4 hereof; or
(v) if the Company shall furnish to Holders
requesting a registration pursuant to this Section 1.2, a certificate signed by
the Company's Chief Executive Officer or Chairman of the Board stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
to be effected at such time, in which event the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the Initiating Holders, provided that such right to delay a
request shall be exercised by the Company not more than once in any twelve
(12)-month period and provided further, that the Company shall not register any
other of its shares during such ninety (90) day period; or
(vi) if the Company has already effected any
registration statement for the Holders within the six (6) month period preceding
the date of such request.
1.3 Company Registration.
(a) If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its capital stock under
the Act in connection with the public offering of such securities (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, a registration relating to a corporate reorganization or
other transaction under Rule 145 of the Act, a registration on any form
(including Form S-4 and Form S-8) that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company, the Company shall, subject to the provisions of
Section 1.3(c), use its best efforts to cause a registration statement to become
effective, which includes all of the Registrable Securities that each such
Holder has requested to be registered.
(b) The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 1.3 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration. The expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 1.7
hereof.
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(c) In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not be
required under this Section 1.3 to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters) and enter into an underwriting
agreement in customary form with an underwriter or underwriters selected by the
Company. If the total amount of securities requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, if any, that the underwriters determine in their sole
discretion will not materially jeopardize the success of the offering. The
securities included in such registration shall be apportioned pro rata among the
selling Holders and other security holders that have the right as of the date
hereof to require registration of their shares in a registration statement under
this Section 1.3, according to the total amount of securities entitled to be
included therein owned by each selling Holder and other holder or in such other
proportions as shall mutually be agreed to by such selling Holders and other
holders; provided, that no Registrable Securities (and securities of the Company
held by other holders that have registration rights as of the date hereof) shall
be excluded until all Common Stock held by other stockholders, directors,
officers and employees of the Company have been excluded. For purposes of
apportionment, for any selling stockholder that is a Holder of Registrable
Securities and that is a partnership or corporation, the partners, retired
partners and stockholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling Holder," and any
pro rata reduction with respect to such "selling Holder" shall be based upon the
aggregate amount of Registrable Securities owned by all such related entities
and individuals.
1.4 Form S-3 Registration.
In case the Company shall receive from the Holders of the
Registrable Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) use best efforts to effect, as soon as practicable,
such registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Holders' Registrable Securities as are specified in such
request, together with all or
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such portion of the Registrable Securities of any other Holders joining in such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company, provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this section 1.4:
(i) if Form S-3 is not available for such
offering by the Holders;
(ii) if the Holders, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (net of any underwriters' discounts
or commissions) of less than $2,000,000;
(iii) if the Company shall furnish to the
Holders a certificate signed by the Chief Executive Officer or Chairman of the
Board of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such Form S-3 registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) days after
receipt of the request of the Holder or Holders under this Section 1.4;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; and provided further, that the Company shall
not register any other of its shares during such 90 day period;
(iv) if the Company has already effected any
registration statement for the Holders within the six (6) month period preceding
the date of such request, or two (2) registrations on Form S-3 for the Holders
pursuant to this Section 1.4; or
(v) in any particular jurisdiction in which the
Company would be required to qualify to do business, where not otherwise
required, or to execute a general consent to service of process in effecting
such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as requests for registration effected pursuant
to Sections 1.2.
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1.5 Obligations of the Company.
Whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use best efforts to
cause such registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one hundred
twenty (120) days or, if earlier, until the distribution contemplated in the
Registration Statement has been completed;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
(c) furnish to the Holders (i) a draft copy of the
registration statement, and (ii) such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) use best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business, where not otherwise
required, or to file a general consent to service of process in any such states
or jurisdictions;
(e) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Act, of (i) the issuance of any stop order
by the SEC in respect of such registration statement, or (ii) the happening of
any event as a result of which the prospectus included 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 the light of the circumstances
then existing;
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(g) if the Registrable Securities are being sold through
underwriters, furnish, upon the request of the Holders of a majority of the
Registrable Securities requesting registration, on the date that such
Registrable Securities are delivered to the underwriters for sale, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration, addressed to the
underwriters, and (ii) a "comfort" letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration, addressed to the
underwriters.
(h) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed; and
(i) provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.6 Information from Holder.
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
reasonably required to effect the registration of such Holder's Registrable
Securities.
1.7 Expenses of Registration.
All expenses (other than underwriting discounts and commissions
incurred in connection with registrations, filings or qualifications pursuant to
Sections 1.2, 1.3 and 1.4 and the fees and disbursements of counsel for the
selling Holders), including (without limitation) all registration, filing and
qualification fees (including Blue Sky fees), printers' and accounting fees,
fees and disbursements of counsel for the Company, shall be borne by the
Company. Notwithstanding the foregoing, the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to Section 1.2 or
Section 1.4 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered (in
which case all participating Holders shall bear such expenses pro rata based
upon the number of Registrable
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Securities that were to be requested in the withdrawn registration), unless, in
the case of a registration requested under Section 1.2, the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2, provided, however, that if at the
time of such withdrawal, the Holders have learned of a material adverse change
in the condition, business or prospects of the Company from that known to the
Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2 or 1.4.
1.8 Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.9 Indemnification.
In the event any Registrable Securities are included in a
registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each selling Holder, the partners or officers,
directors and stockholders of each Holder, legal counsel, investment advisors
and accountants for each Holder, any underwriter (as defined in the Act) for
such Holder and each person, if any, who controls such Holder or underwriter,
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which they may become subject under
the Act, the 1934 Act or any state securities laws, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities laws or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities laws; and the Company will reimburse each such Holder, partner,
officer, director, stockholder, counsel, accountant, underwriter or 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
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action as such expenses are incurred; provided, however, that the indemnity
agreement contained in this subsection 1.9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person;
provided further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder or
underwriter, or any person controlling such Holder or underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the shares to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) To the extent permitted by law, each selling Holder,
on a several and not joint basis, will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, legal counsel and accountants for the Company, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or any state securities
laws, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will
reimburse any person intended to be indemnified pursuant to this subsection
1.9(b) for any legal or other expenses reasonably incurred by such person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.9(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder (which consent shall not be unreasonably
withheld), provided that in no event shall any indemnity under this subsection
1.9(b) exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 of actual knowledge of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1.9, deliver to the indemnifying party a written notice of the commencement
thereof. The
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indemnifying party shall promptly assume the defense of the indemnified party
with counsel reasonably satisfactory to the indemnified party, and the fees and
expenses of such counsel shall be at the sole cost and expense of the
indemnifying party. The indemnified party will cooperate with the indemnifying
party in the defense of any action, proceeding, or investigation for which the
indemnified party assumes the defense. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel in any such
action, proceeding, or investigation and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the indemnifying party has agreed to pay such fees
and expenses, (ii) the indemnifying party shall have failed promptly to assume
the defense of such action, proceeding, or investigation and employ counsel
reasonably satisfactory to the indemnified party, or (iii) in the reasonable
judgment of the indemnified party there may be one or more defenses available to
the indemnified party which are not available to the indemnifying party with
respect to such action, claim, or proceeding due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding, in which case the indemnifying
party shall not have the right to assume the defense of such action, proceeding,
or investigation on behalf of the indemnified party. The indemnifying party
shall not be liable for the settlement by the indemnified party of any action,
proceeding, or investigation effected without its consent, which consent shall
not be unreasonably withheld. The indemnifying party shall not enter into any
settlement in any action, suit, or proceeding to which the indemnified party is
a party, unless such settlement includes a general release of the indemnified
party with no payment by the indemnified party of consideration. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.9 to the extent of such prejudice, but
the omission to so deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 1.9.
(d) If the indemnification provided for in this Section
1.9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
and the relative benefits received by the indemnifying party on the one hand and
of the indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense, as
well as any other relevant equitable considerations, provided that no person
guilty of fraud shall be entitled to contribution. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the
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indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The relative benefits received by the indemnifying party
and the indemnified party shall be determined by reference to the net proceeds
and underwriting discounts and commissions from the offering received by each
such party. In no event shall any contribution under this subsection 1.9(d)
exceed the net proceeds from the offering received by such Holder, less any
amounts paid under subsection 1.9(b).
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under
this Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144; or
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule
144, the Act and the 1934 Act, or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
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1.11 Assignment of Registration Rights.
The rights to cause the Company to register Registrable
Securities pursuant to this Section 1 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities that (i)
is a subsidiary, affiliate, parent, partner, limited partner, retired partner or
stockholder of a Holder, (ii) is a Holder's immediate family member (spouse or
child) or trust for the benefit of an individual Holder, or (iii) after such
assignment or transfer, holds at least 20,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) the Company is, within
a reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned, and provided further that the
Company shall have no obligation to any transferee prior to receiving such
notification of transfer; (b) such transferee or assignee agrees in writing to
be bound by and subject to the terms and conditions of this Agreement, including
without limitation the provisions of Section 1.12 below; and (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act.
1.12 "Market Stand-Off" Agreement.
(a) Notwithstanding anything in this Agreement to the
contrary, each Holder agrees that such Holder shall not (i) lend, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (whether such shares or any such securities are then owned by the
Holder or are thereafter acquired), or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise (collectively, a "STOCK
TRANSACTION"), without the prior written consent of the Company during the
period beginning on the Effective Time and ending on March 31, 2001.
(b) Without limiting the foregoing, each Holder hereby
agrees that it will not enter into any Stock Transaction without the prior
written consent of the Company and the managing underwriter, during the period
commencing on the date of the final prospectus relating to any public offering
of the capital stock of the Company and ending on the date specified by the
Company and the managing underwriter (such period not to exceed one hundred
eighty (180) days). The foregoing provisions of this Section 1.12(b) shall not
apply to the sale of any shares
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to an underwriter pursuant to an underwriting agreement, and shall only be
applicable to the Holders if all officers and directors and greater than five
percent (5%) stockholders of the Company enter into similar agreements. The
underwriters in connection with the Company's public offerings are intended
third party beneficiaries of this Section 1.12(b) and shall have the right,
power and authority to enforce the provisions hereof as though they were a party
hereto. Notwithstanding the foregoing, nothing in this Section 1.12(b) shall
prevent the undersigned from making a transfer of any Common Stock that was
listed on a national stock exchange or traded on the Nasdaq National Market at
the time it was acquired by the Holder or was acquired by the undersigned
pursuant to Rule 144A of the Act.
(c) The restrictions set forth herein shall be binding
upon any transferee of the Registrable Securities of each Holder and the
certificates for the Registrable Securities shall bear a legend to such effect.
In order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
1.13 Termination of Registration Rights.
No Holder shall be entitled to exercise any right provided for
in this Section 1 after two (2) years following the date hereof or, as to any
Holder, such earlier time at which all Registrable Securities held by such
Holder (and any affiliate of the Holder with whom such Holder must aggregate its
sales under Rule 144) can be sold in any three (3)-month period in compliance
with Rule 144 of the Act.
2. Miscellaneous.
2.1 Successors and Assigns.
Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any shares of
Registrable Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.2 Governing Law.
This Agreement shall be governed by and construed under the laws
of the State of California as applied to agreements among California residents
entered into and to be performed entirely within California.
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2.3 Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2.4 Titles and Subtitles.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
2.5 Notices.
Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon delivery by
confirmed facsimile transmission, nationally recognized overnight courier
service, or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
2.6 Expenses.
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.7 Entire Agreement; Amendments and Waivers.
This Agreement (including the Exhibits hereto, if any)
constitutes the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
no less than a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities, each future holder of all such
Registrable Securities and the Company.
2.8 Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
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Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
2.9 Aggregation of Stock.
All shares of Registrable Securities held or acquired by
entities advised by the same investment adviser and affiliated entities or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
OMNIS:
OMNIS TECHNOLOGY CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx,
President
Address:
00000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: President
Fax Number: 949/000-0000
HOLDERS:
/s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
/s/ Xxx Xxxxxxx
------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxx Xxxxxxxx
------------------------------------
Xxx Xxxxxxxx
/s/ Xxxxxxx X. XxXxxx
------------------------------------
Xxxxxxx X. XxXxxx
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx
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