REGISTRATION RIGHTS AGREEMENT
Exhibit
10.8
This
Registration Rights Agreement (this “Agreement”) is made
and entered into as of May 28, 2010, among Clarus Corporation, a Delaware
corporation (the “Company”), and each
of the Investors that have executed this Agreement on the signature page hereto
(each an “Investor”, and
collectively, the “Investors”).
WITNESSETH:
WHEREAS, each Investor is a
party to individual Subscription Agreements (each, a “Subscription
Agreement”) dated as of May 7, 2010, by and between Clarus Corporation,
(the “Company”), and such
Investor;
WHEREAS, pursuant to the terms
of a Subscription Agreement, each Investor is subscribing for and purchasing
from the Company the number of Subscription Shares set forth on a schedule to
such Subscription Agreement at a price per share equal to the Subscription
Price; and
WHEREAS, as an inducement for
each of the Investors to enter into a Subscription Agreement and subscribe for
and purchase the Subscription Shares, the Company has agreed to provide the
registration rights set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises and representations, warranties, covenants
and agreements set forth herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Definitions.
Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in each Subscription Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Advice” shall have
the meaning set forth in Section 3(m).
“Affiliate” means,
with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such
Person. For the purposes of this definition, “control,” when used
with respect to any Person, means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of “affiliated,” “controlling” and
“controlled”
have meanings correlative to the foregoing.
“Agreement” shall have
the meaning set forth in the Preamble.
“Blackout Period”
shall have the meaning set forth in Section 3(n).
“Board” shall have the
meaning set forth in Section 3(n).
“Business Day” means
any day, other than Saturday, Sunday and any day which shall be a legal holiday
or a day on which banks in the state of New York are authorized or required by
law or other government action to be closed.
“Commission” means the
Securities and Exchange Commission.
“Common
Stock” means the Company’s
common stock, par value $.0001.
“Company” shall have
the meaning set forth in the Preamble.
“Effectiveness Period”
shall have the meaning set forth in Section 2.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Holder” or “Holders” means the
holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Investor” or “Investors” shall have
the meaning set forth in the Preamble.
“Losses” shall have
the meaning set forth in Section 5(a).
“Person” means an
individual or a corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Prospectus” means the
prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
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“Registrable
Securities” means (i) the shares of Common Stock issued to each Investor
pursuant to a Subscription Agreement; and (ii) any other securities (whether
issued by the Company or any other Person) distributed as a dividend or other
distribution with respect to, issued upon exchange of, or in replacement of,
Registrable Securities referred to in clause (i), provided that (A) such term
shall not include any Registrable Securities transferred in a transaction in
which, under the terms of this Agreement, rights hereunder may not be, or are
not properly, assigned and (B) as to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when: (1) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of under such registration statement, provided, however, new certificates
therefor not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent, and subsequent transfer or
disposition of such securities shall not require their registration or
qualification under the Securities Act or any similar state law then in force;
(2) such securities shall have been transferred pursuant to Rule 144 under the
Securities Act (or any successor provision thereto) or are transferable without
any restriction in accordance with such Rule 144 (or any successor provision
thereto), provided, however, new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the Company or its
transfer agent, and subsequent transfer or disposition of such securities shall
not require their registration or qualification under the Securities Act or any
similar state law then in force; (3) such securities shall have been otherwise
transferred or disposed of; or (4) such securities shall have ceased to be
outstanding.
“Registration
Statement” means the registration statements and any additional
registration statements contemplated by Section 2, including (in each case) the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference into such registration
statement.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Rule 158” means Rule
158 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Rule 415” means Rule
415 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Rule 424” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Subscription
Agreement” shall have the meaning set forth in the first “WHEREAS”
clause.
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2. Registration. (a) The
Company agrees to use its commercially reasonable efforts to prepare and file
with the Commission, as soon as reasonably practicable, a “shelf” Registration
Statement covering all Registrable Securities for a secondary or resale offering
to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-3 (or on another form appropriate for
such registration in accordance herewith). The Company shall use its
commercially reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act (including filing with the
Commission a request for acceleration of effectiveness in accordance with Rule
12dl-2 promulgated under the Exchange Act) promptly after the date that the
Company is notified (orally or in writing, whichever is earlier) by the
Commission that a Registration Statement will not be “reviewed,” or not be
subject to further review, and to keep such Registration Statement continuously
effective under the Securities Act until such date as is the earlier of (x) the
date when all Registrable Securities covered by such Registration Statement have
been sold or (y) as to any particular Holder, the date on which all such
Holder's Registrable Securities may be sold without any restriction pursuant to
Rule 144, provided that if a Holder requests, the Company shall deliver
unlegended certificates evidencing the Registrable Securities to such Holder
(the “Effectiveness
Period”).
(b) Piggy-Back
Registrations. If at any time during the period commencing
from and after the date hereof, there is not an effective Registration Statement
covering all of the Registrable Securities, and the Company intends to prepare
and file with the Commission a registration statement relating to an offering
for its own account or the account of others under the Securities Act of any of
its equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, the Company shall send to each Holder of
Registrable Securities written notice of such determination and, if within ten
(10) Business Days after receipt of such notice, any such Holder shall so
request in writing (which request shall specify the Registrable Securities
intended to be disposed of by the Holders), the Company will cause the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holder, to the extent required
to permit the disposition of the Registrable Securities so to be registered,
provided that if at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Registration
Statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to such Holders and, thereupon, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay expenses in accordance with Section 4 hereof), and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities being registered pursuant to this Section 2(b) for the
same period as the delay in registering such other securities. The Company shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered; provided, however, that the
Company shall not be required to register any Registrable Securities pursuant to
this Section 2(b) that are eligible for sale without restrictions pursuant to
Rule 144 of the Securities Act. In the case of an underwritten public
offering, if the managing underwriter(s) should reasonably object to the
inclusion of the Registrable Securities in such registration statement, then if
the Company after consultation with the managing underwriter should reasonably
determine that the inclusion of such Registrable Securities would materially
adversely affect the offering contemplated in such registration statement, and
based on such determination recommends inclusion in such registration statement
of fewer or none of the Registrable Securities of the Holders, then (x) the
number of Registrable Securities of the Holders to be included in such
registration statement shall be reduced pro-rata among such Holders (based upon
the number of Registrable Securities requested to be included in the
registration), if the Company after consultation with the underwriter(s)
recommends the inclusion of fewer Registrable Securities, or (y) none of the
Registrable Securities of the Holders shall be included in such registration
statement, if the Company after consultation with the underwriter(s) recommends
the inclusion of none of such Registrable Securities. The right of
any Holder to participate in an underwritten public offering hereunder shall be
conditioned upon such Holders entering into the underwriting agreement and
lock-up agreement with the representative of the underwriter or underwriters on
the same terms as required of other selling securities holders in such
offering. Notwithstanding the foregoing, this subsection 2(b) shall
automatically terminate and be of no further force or effect as to any Holder of
Registrable Securities when the Effectiveness Period has expired with respect to
such Holder.
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3. Registration
Procedures.
In
connection with the Company's registration obligations set forth in Section 2
hereof, the Company shall:
(a) Prepare
and file with the Commission as soon as reasonably practicable, a Registration
Statement on Form S-3 (or on another form appropriate for such registration in
accordance herewith) in accordance with the method or methods of distribution
thereof as specified by the Holders, and cause the Registration Statement to
become effective and remain effective as provided herein; provided, however, that not
less than five (5) Business Days prior to the filing of the Registration
Statement or any related Prospectus and not less than three (3) Business Days
prior to the filing of any amendment or supplement thereto (including any
document that would be incorporated therein by reference), the Company shall
(i) furnish to the Holders copies of all such documents proposed to be
filed, which documents (other than those incorporated by reference) will be
subject to the review of such Holders and (ii) at the request of any Holder,
cause its officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of counsel to such Holders, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company
shall not file the Registration Statement or any such Prospectus or any
amendments or supplements thereto to which the Holders of a majority of the
Registrable Securities shall reasonably object in writing within three (3)
Business Days after their receipt thereof, in which event the filing of the
Registration Statement or any such Prospectus or any amendments or supplements
thereto shall be delayed until five business days after the parties hereto
reach agreement on the content of the applicable Registration
Statement, Prospectus, or amendment or supplement thereto.
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(b) (i)
If necessary to keep such Registration Statement accurate and complete, prepare
and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the
Registration Statement continuously (but for the filing of such post-effective
amendment) effective as to the applicable Registrable Securities for the
Effectiveness Period and prepare and file with the Commission such additional
Registration Statements in order to register for resale under the Securities Act
all of the Registrable Securities; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; (iii) respond as
promptly as reasonably practicable to any comments received from the Commission
with respect to the Registration Statement or any amendment thereto and as
promptly as reasonably practicable provide the Holders true and complete copies
of all correspondence from and to the Commission relating to the Registration
Statement; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities to be sold as promptly as reasonably
practicable (A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a “review” of
such Registration Statement and whenever the Commission comments in writing on
such Registration Statement; and (C) with respect to the Registration Statement
or any post-effective amendment, when the same has become effective, and
thereafter: (i) of any request by the Commission or any other Federal
or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose; (iii) of the receipt by the
Company 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; and (iv) of the occurrence of any event that makes any statement made
in the Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, 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.
(d) Use
its commercially reasonable efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of, (i) any order suspending the effectiveness of the
Registration Statement or (ii) any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in
any jurisdiction within the United States, at the earliest practicable
moment.
(e) If
requested by the Holders of a majority in interest of the Registrable
Securities, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information
regarding a Holder or the plan of distribution as such majority of Holders may
reasonably request, provided that such information is true and complete in all
material respects, and (ii) make all required filings of such Prospectus
supplement or such 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.
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(f)
Furnish to each Holder, without charge, at
least one conformed copy of each Registration Statement and each amendment
thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits
to the extent requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with the
Commission.
(g) Promptly
deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the offering and sale
of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto in conformity with the requirements of the Securities
Act.
(h) Prior
to any public offering of Registrable Securities, use its best efforts to
register or qualify or cooperate with the Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Holder requests in writing, to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and to do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by a Registration
Statement; provided, however, that the Company shall not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject the Company to general
service of process in any jurisdiction were it is not then so
subject.
(i)
Cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement, which certificates shall
be free of all restrictive legends, and to enable such Registrable Securities to
be in such denominations and registered in such names as any Holder may
request.
(j)
Upon the occurrence of any event contemplated by Section
3(c)(iv), as promptly as possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a 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.
(k) Use
its commercially reasonable efforts to cause all Registrable Securities relating
to such Registration Statement to be listed on any securities exchange,
quotation system, market or over-the-counter bulletin board, if any, on which
similar securities issued by the Company are then listed.
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(l)
Comply in all
material respects with all applicable rules and regulations of the Commission
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
not later than 45 days after the end of any 3-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company after the effective date of
the Registration Statement, which statement shall conform to the requirements of
Rule 158.
(m) (i) Require
each Holder to furnish to the Company information regarding such Holder and the
distribution of such Registrable Securities as is required by law to be
disclosed in the Registration Statement, Prospectus, supplemented Prospectus
and/or amended Registration Statement, including any information necessary to
allow the Company to fulfill its undertakings made in accordance with Item 512
of Regulation S-K, and the Company may exclude from such registration the
Registrable Securities of any such Holder who fails to furnish such information
within a reasonable time prior to the filing of each Registration Statement,
Prospectus, supplemented Prospectus and/or amended Registration
Statement.
(ii) If
the Registration Statement refers to any Holder by name or otherwise as the
holder of any securities of the Company, then such Holder shall have the right
to require (if such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force) the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed at a time when such reference is not
required.
(iii) Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the kind
described in Section 3(c)(ii), 3(c)(iii) or 3(c)(iv), such Holder will forthwith
discontinue disposition of such Registrable Securities under the Registration
Statement until such Holder's receipt of copies of the supplemented Prospectus
and/or amended Registration Statement contemplated by Section 3(j), or until it
is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide stop orders to
enforce the provisions of this paragraph, provided that the Company shall
promptly remove any such stop orders as soon as such stop orders are no longer
necessary.
(n) If
(i) there is material non-public information regarding the Company which the
Company’s Board of Directors (the “Board”) reasonably
determines not to be in the Company’s best interest to disclose and which the
Company is not otherwise required to disclose, or (ii) there is a significant
business opportunity (including, but not limited to, the acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction) available to
the Company which the Board reasonably determines not to be in the Company’s
best interest to disclose and which the Company would be required to disclose
under the Registration Statement, then, notwithstanding anything to the contrary
in this Agreement, the Company may postpone or suspend filing or effectiveness
of a Registration Statement for a period not to exceed 60 consecutive days,
provided that the Company may not postpone or suspend its obligation under this
Section 3(n) for more than 90 days in the aggregate during any 12 month period
(each, a “Blackout
Period”).
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4. Registration
Expenses
All fees
and expenses incident to the performance of or compliance with this Agreement by
the Company shall be borne by the Company whether or not the Registration
Statement is filed or becomes effective and whether or not any Registrable
Securities are sold pursuant to the Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with
any securities exchange, quotation system, market or over-the-counter
bulletin board on which Registrable Securities are required hereunder to be
listed, (B) with respect to filings required to be made with the Commission, and
(C) in compliance with state securities or Blue Sky laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is requested by the Holders of a majority of the Registrable
Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) Securities Act liability insurance, if the
Company so desires such insurance, and (v) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement, including, without limitation, the
Company's independent public accountants (including the expenses of any comfort
letters or costs associated with the delivery by independent public accountants
of a comfort letter or comfort letters, if requested by any underwriter) and
legal counsel. In addition, the Company shall be responsible for all
of its internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), and the expense of any audit.
5. Indemnification
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify and hold harmless each Holder, the officers,
directors, agents, and employees of each of them, each Person who controls any
such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and attorneys' fees) and
expenses (collectively, “Losses”), as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained or incorporated by reference in (i) the
Registration Statement, (ii) any Prospectus or any form of prospectus,
(iii) any amendment or supplement thereto, or (iv) any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except to the extent, but only to the extent, that
(A) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, which information was reasonably relied on by the
Company for use therein or to the extent that such information relates to such
Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto, or (B) such Losses
arise in connection with the use by such Holder of a Prospectus (x) after the
Company has notified such Holder of the occurrence of an event as described in
Section 3(n) and prior to receipt by such notice, or (y) during a Blackout
Period of which the Holder has received written notice from the
Company. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this
Agreement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an Indemnified Party and
shall survive the transfer of the Registrable Securities by the
Holders.
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(b) Indemnification by
Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, the directors, officers, agents and
employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, arising
solely out of or based solely upon any untrue statement of a material fact
contained in the Registration Statement, any Prospectus, or any form of
prospectus, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or form of prospectus or supplement
thereto, in the light of the circumstances under which they were made) not
misleading, to the extent, but only to the extent, that (i) such untrue
statement or omission is contained in or omitted from any information furnished
in writing by such Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus and that such information was
reasonably relied upon by the Company for use in the Registration Statement,
such Prospectus or such form of prospectus or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and approved by such
Holder expressly for use in the Registration Statement, such Prospectus or such
form of Prospectus Supplement, or (ii) such Losses arise in connection with
the use by such Holder of a Prospectus (x) after the Company has notified
such Holder of the occurrence of an event as described in Section 3(n), or
(y) during a Blackout Period of which the Holder has received written
notice from the Company. Notwithstanding anything to the contrary
contained herein, the Holder shall be liable under this Section 5(b) for only
that amount as does not exceed the net proceeds to such Holder as a result of
the sale of Registrable Securities pursuant to such Registration
Statement.
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “Indemnified Party”),
such Indemnified Party promptly shall notify the Person from whom indemnity is
sought (the “Indemnifying Party)
in writing, and the Indemnifying Party shall diligently assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
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An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly, diligently
and appropriately to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; (3)
the Indemnified Party shall reasonably determine that there may be legal
defenses available to it which are not available to the Indemnifying Party; or
(4) the Indemnified Party shall reasonably determine that there is an actual or
potential conflict of interest between it and the Indemnifying Party, including,
without limitation, situations in which there are one or more legal defenses
available to the Indemnified Party that are antithetical or in opposition to
those available to the Indemnifying Party, and in any of such cases, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party. The Indemnifying
Party shall not be liable for any settlement of any such Proceeding effected
without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding and does not
impose any monetary or other obligation or restriction on the Indemnified
Party.
All fees
and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten (10) Business Days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution. If
a claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each 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 Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying Party
or Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set forth in
Section 5(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms. Notwithstanding anything to the contrary
contained herein, the Holder shall be liable or required to contribute under
this Section 5(c) for only that amount as does not exceed the net proceeds to
such Holder as a result of the sale of Registrable Securities pursuant to such
Registration Statement.
11
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. 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.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties. The indemnity and contribution agreements herein are in
addition to and not in diminution or limitation of any indemnification
provisions under any of the Subscription Agreements.
6. Rule
144.
As long
as any Holder owns Registrable Securities, the Company covenants to timely file
all reports required to be filed by the Company after the date hereof pursuant
to Section 13(a) or 15(d) of the Exchange Act. As long as any Holder owns
Registrable Securities, if the Company is not required to file reports pursuant
to Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to
the Holders and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly financial statements,
together with a discussion and analysis of such financial statements in form and
substance substantially similar to those that would otherwise be required to be
included in reports required by Section 13(a) or 15(d) of the Exchange Act, as
well as any other information required thereby, in the time period that such
filings would have been required to have been made under the Exchange
Act. The Company further covenants that it will take such further
action as any Holder may reasonably request, all to the extent required from
time to time to enable such Person to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 promulgated under the Securities Act.
12
7.
Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by a Holder of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation
for any losses incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Inconsistent
Agreements. Neither the Company nor any of its
subsidiaries has, as of the date hereof, entered into, nor shall the Company or
any of its subsidiaries, 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 the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority of the then outstanding Registrable
Securities, the Company shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in
full of the Holders set forth herein, and are not otherwise in conflict with the
provisions of this Agreement.
(c) Successors and
Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investor, as applicable.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the respective permitted successors and assigns of the
parties. 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.
(d) Counterparts;
Faxes. 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. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
(e) 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.
(f)
Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier or electronic
mail, then such notice shall be deemed given upon receipt of confirmation of
complete transmittal, (iii) if given by mail, then such notice shall be deemed
given upon the earlier of (A) receipt of such notice by the recipient or (B)
three days after such notice is deposited in first class mail, postage prepaid,
and (iv) if given by an internationally recognized overnight air courier, then
such notice shall be deemed given one business day after delivery to such
carrier. All notices shall be addressed to the party to be notified
at the address as follows, or at such other address as such party may designate
by ten days’ advance written notice to the other party:
13
If to the Company:
Clarus
Corporation
0000 Xxxx
0000 Xxxxx
Xxxx Xxxx
Xxxx, Xxxx 00000
Fax:
Email:
Attention: Corporate
Secretary
with a
copy to:
Xxxx
Xxxxxxx, P.C.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Fax: (000)
000-0000
Email:
xxxxxxxxx@xxxxxxxxxxx.xxx
Attention: Xxxxxx
X. Xxxxxxxx, Esq.
If to an Investor, to the address set
forth below such Investor’s name on the signature pages hereto.
(g) Amendments and
Waivers. 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 Investor. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
Holder and its successors and permitted assigns.
(h) Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision of
law which renders any provision hereof prohibited or unenforceable in any
respect.
(i)
Entire
Agreement. This Agreement constitutes the entire agreement
among the parties hereof with respect to the subject matter hereof and thereof
and supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and
thereof.
(j)
Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
14
(k) Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served on
each party hereto anywhere in the world by the same methods as are specified for
the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the
laying of venue of any such suit, action or proceeding brought in such courts
and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY
RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
(l)
Notice of
Effectiveness. Within two (2) Business Days after the
Registration Statement which includes the Registrable Securities is ordered
effective by the Commission, the Company shall deliver, and if requested by the
Company's transfer agent, shall use commercially reasonable efforts to cause
legal counsel for the Company in connection with such Registration Statement to
deliver, to the transfer agent for such Registrable Securities (with copies to
the Holders whose Registrable Securities are included in such Registration
Statement) confirmation that the Registration Statement has been
declared effective by the Commission substantially in the form attached hereto
as Exhibit
A.
[Signature
Page Follows:]
15
In Witness Whereof, the
parties hereto have caused this Registration Rights Agreement to be duly
executed by their respective authorized persons as of the date first indicated
above.
The
Company:
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Clarus
Corporation
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By:_______________________________
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Name: Xxxxxx
X. Xxxxxxxxx
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Title: Chief
Financial Officer
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Investors:
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Name:
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Name:
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Address:
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Address:
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Name:
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Name:
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Address:
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Address:
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Name:
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Name:
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Address:
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Address:
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Name:
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Name:
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Address:
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Address:
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Investors:
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Name:
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Name:
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Address:
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Address:
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Name:
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Address:
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EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[Name and
Address of Transfer Agent]
[Date]
Re: Clarus
Corporation
Dear
[______]:
We are
special counsel to Clarus Corporation, a Delaware corporation (the “Company”), and have
represented the Company in connection with the preparation of a Registration
Statement pursuant to a Registration Rights Agreement, dated as of May __, 2010
(the “Registration Rights
Agreement”), between the Company and the investors party thereto (the
“Investors”) pursuant to
which the Company agreed, among other things, to register the Registrable
Securities (as defined in the Registration Rights Agreement), under the
Securities Act of 1933, as amended (the “1933 Act”). In
connection with the Company’s obligations under the Registration Rights
Agreement, on __________, 201__, the Company filed a Registration Statement on
Form S-3 (File No. 333-_____________) (the “Registration Statement”) with
the Securities and Exchange Commission (the “SEC”) relating to the
Registrable Securities which may be sold under such Registration Statement by
the selling stockholder(s) named therein.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS]
on [ENTER DATE OF
EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a
member of the SEC’s staff, that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC.
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Very
truly yours,
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||
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CLARUS
CORPORATION
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By:
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||
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Name:
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||
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Title:
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||
cc: [LIST NAMES OF
INVESTORS]
