EXHIBIT 10.28
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of this 2nd day of February, 2000, by and among XxxXxxxx.xxx, Inc., a
Delaware corporation (the "Company"), and the undersigned holders of Common
Stock of the Company, (individually, a "Holder" and collectively, the
"Holders").
WHEREAS, pursuant to the terms of the Merger Agreement, dated February 2,
2000, by and among the Company, SciCentral Acquisition Subsidiary, Inc., a
Delaware corporation, and XxxXxxxxxx.xxx, Inc., a Delaware corporation, the
Holders are acquiring an aggregate of 40,000 shares (the "Shares") of the
Company's Common Stock, $0.001 par value per share (the "Common Stock"); and
WHEREAS, the Company has agreed to provide the Holders with certain rights
relating to the registration and sale of the Shares.
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the parties agree as follows:
ARTICLE 1 - REGISTRATION RIGHTS
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1.1 Definitions. For purposes of this Article 1, the following terms
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shall have the following respective meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute enacted hereafter, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
(b) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Act.
(c) "Common Stock" shall mean the Common Stock, $0.001 par value per
share, of the Company.
(d) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of such
registration statement by the Commission.
(e) "Registrable Securities" shall mean (i) shares of Common Stock issued
or issuable upon conversion of the Shares and (ii) any other shares of Common
Stock issued in respect of the Shares (on account of stock splits, stock
dividends, reclassifications, recapitalizations or similar events); provided,
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however, that shares of Common Stock which are Registrable Shares shall cease to
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be Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Act, (ii) upon any sale in any manner to a person or entity
which, by virtue of Section
1.10 of this Agreement, is not entitled to the rights provided by this
Agreement, or (iii) with respect to each Holder, at such time as such Holder's
Registrable Securities may be sold pursuant to Rule 144 without holding period
or volume limitations.
1.2 Piggyback Registration. Subject to Section 1.8 of this Agreement, if
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at any time the Company proposes to register any of its securities under the
Act, either for its own account or for the account of others, in connection with
the public offering of such securities solely for cash, on a registration form
that would also allow the registration of the Registrable Securities, the
Company shall, each such time, promptly give each Holder written notice of such
proposed registration. This provision shall not apply to a registration solely
of securities issued or issuable in connection with any stock option plan or
other employee benefit plan or in connection with a merger or acquisition. Upon
receipt by the Company of the written request of any Holder given within twenty
(20) days after mailing of any such notice by the Company, the Company shall use
its best efforts to cause to be included in such registration under the Act all
the Registrable Securities that each such Holder has requested be registered.
1.3 Obligations of the Company. Whenever required under this Agreement to
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use its best efforts to effect the registration of any Registrable Securities,
the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement covering
such Registrable Securities and use its best efforts to cause such registration
statement to be declared effective by the Commission as expeditiously as
possible and to keep such registration effective until the earlier of (i) the
date when all Registrable Securities covered by the registration statement have
been sold or (ii) 180 days from the effective date of the registration
statement.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to such registration statement as may be necessary to keep
such registration statement effective during the period referred to in Section
1.3(a) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement, and cause
the prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed with the Commission pursuant to Rule 424 under the
Act.
(c) Furnish to the selling Holders such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in such
registration statement (including each preliminary prospectus), and each
supplement thereto as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the Registrable
Securities under the securities laws of such jurisdictions in which the Company
shall also register securities to be sold by the Company pursuant to the same
registration under the Act.
(e) Promptly notify each selling Holder of such Registrable Securities at
any time when a prospectus relating thereto is required to be delivered under
the Act of the happening of
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any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading and, at the request of
any such Holder, the Company will prepare promptly a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading.
(f) Provide a transfer agent for all such Registrable Securities not later
than the effective date of such registration statement.
(g) Enter into underwriting agreements and related agreements in customary
form for any primary offering.
(h) Promptly notify the selling Holders of Registrable Securities and the
underwriters, if any, of the following events and (if requested by any such
person) confirm such notification in writing: (1) the filing of the prospectus
or any prospectus supplement and the registration statement and any amendment or
post-effective amendment thereto and, with respect to the registration statement
or any post-effective amendment thereto, the declaration of the effectiveness of
such documents, (2) any requests by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional information,
(3) the issuance of any stop order suspending the effectiveness of the
registration statement, and (4) the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction.
(i) Whenever any provision of this Agreement requires the Company to
furnish any information to the Holders or the agents or representatives of the
Holders, the Company may require any such person or entity to execute and
deliver a reasonable confidentiality agreement, agreement to refrain from
trading or any other agreement necessary or prudent to protect the Company or
its officers, directors and employees against xxxxxxx xxxxxxx liabilities and
may restrict access to confidential trade secret information.
1.4 Furnish Information. In the event of any registration by the Company,
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the Holders shall furnish to the Company such information regarding them, the
Registrable Securities and other securities of the Company held by them, and the
intended method of disposition of such Registrable Securities as the Company
shall reasonably request and as shall be required in connection with the action
to be taken by the Company. It shall be a condition precedent to the obligation
of the Company to include any Registrable Securities of an Holder in a
registration effected pursuant to this Agreement for such Holder to have
provided the Company with such written information regarding the registration of
such Registrable Securities as the Company shall reasonably request.
1.5 Suspension of Disposition of Registrable Securities. Each selling
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Holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section
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1.3(e) or 1.3(h)(2), 1.3(h)(3) or 1.3(h)(4) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities until such Holder's receipt of
copies of a supplemented or amended prospectus contemplated by Section 1.3(e)
hereof, or until it is advised in writing by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, or
in the case of Section 1.3(h)(2), 1.3(h)(3) or 1.3(h)(4), until the Company
notifies the Holder in writing that sales of Registrable Securities may
continue. If so directed by the Company, such Holder will deliver to the Company
(at the expense of the Company) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
1.6 Expenses of Registration.
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The Holders shall bear the fees and expenses of their own counsel and shall
bear any additional registration and qualification fees and expenses (including
underwriters' discounts and commissions and transfer taxes), and any additional
costs and disbursements of counsel for the Company that result solely from the
inclusion of Registrable Securities held by the Holders in such registration,
with such additional expenses of the registration being borne by all selling
Holders pro rata on the basis of the total number of Registrable Securities so
registered; provided, however, that if any such cost or expense is attributable
solely to one selling Holder and does not constitute a normal cost or expense of
a registration, such cost or expense shall be allocated solely to that selling
Holder. All other expenses of such registrations shall be borne by the Company.
1.7 Underwriting Requirements; Priorities.
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(a) The Company shall have the right to select the investment banker(s)
and/or manager(s) to administer any offering to which this Agreement is
applicable. If a registration is an underwritten registration, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (i) first, securities the Company proposes to sell,
(ii) second, the securities requested to be included therein by holders of
securities with contractual registration rights that are senior to those of the
Holders, pro rata among the holders of such securities on the basis of the
number of shares requested to be included therein, (iii) third, the securities
requested to be included therein by Holders and by the holders of securities
with contractual registration rights that are in parity with the rights of the
Holders, pro rata among such Holders and other holders on the basis of the
number of shares requested to be included therein, and (iv) fourth, other
securities requested to be included in such registration, including securities
to be sold by holders without contractual registration rights.
(b) No Holder may participate in any underwritten registration hereunder
unless such Holder (i) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii)
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completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
1.8 Limitation of the Company's Obligations.
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(a) The Company may, in its sole discretion, postpone or withdraw any
registration in which Registrable Securities have been included pursuant to this
Agreement without obligation to the Holders.
(b) The Company shall not be obligated under this Agreement to register or
include in any registration Registrable Securities that any Holder has requested
to be registered if the Company shall furnish such Holder with a written opinion
of counsel reasonably satisfactory to such Holder, that all Registrable
Securities that such Holder holds may be publicly offered, sold and distributed
without registration under the Act pursuant to Rule 144 promulgated by the
Commission under the Act in any three-month period without restriction as to the
amount of securities that can be sold.
(c) The Company may, in its sole discretion, grant to any owner of
securities of the Company registration rights of any kind or nature.
1.9 Lock-up Agreement. For so long as a Holder has the right to have
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Registrable Securities included in any registration pursuant to this Agreement,
the Holder agrees in connection with any registration of the Company's
securities, upon the request of the underwriters managing any underwritten
offering of the Company's securities, not to sell, make any short sale of,
pledge, grant any option for the purchase of or otherwise dispose of any
Registrable Securities (other than those included in the registration) without
the prior written consent of the Company or such underwriters, as the case may
be, during the seven (7) days prior to and during the 180-day period beginning
on the effective date of such registration, as the Company or the underwriters
may specify. This provision shall apply whether or not any Registrable
Securities of the Holder are included in the offering.
1.10 Transfer of Registration Rights. Provided that the Company is given
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written notice by the Holder at the time of such transfer stating the name and
address of the transferee and identifying the securities with respect to which
the rights under this Agreement are being assigned and such transferee agrees in
writing to be bound by the terms of this Agreement, the registration rights
under this Agreement may be transferred in whole or in part at any time to any
transferee of Registrable Securities. Upon such transfer, the transferee shall
be deemed to be a Holder for all purposes hereunder.
1.11 Indemnification and Contribution. In the event any Registrable
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Securities are included in a registration statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and hereby
does, indemnify and hold harmless each Holder whose Registrable Securities are
included in a
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registration, each director, officer, partner, employee, or agent for such
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, against any losses, claims, damages or liabilities, joint or several,
to which they may become subject under the Act and applicable state securities
laws insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein in light of the circumstances under which they were made or
necessary to make the statements therein not misleading or arise out of any
violation by the Company of any rule or regulation promulgated under the Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration; and will reimburse each such
person or entity for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity 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 an untrue statement or alleged untrue statement
or omission or alleged omission made in connection with such registration
statement, preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by or on behalf
of any such Holder, underwriter or controlling person.
(b) To the fullest extent permitted by law, each Holder whose Registrable
Securities are included in a registration under this Agreement, severally and
not jointly, will, and hereby does, indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, and any underwriter for the Company (within the meaning of the Act),
each other selling Holder and each person, if any, who controls such other
selling Holder or underwriter within the meaning of the Act against any losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer, controlling person, selling Holder or underwriter may
become subject, under the Act and applicable state securities laws, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such registration statement, preliminary or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such
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Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, selling Holder or
underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity 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 such Holder
(which consent shall not be unreasonably withheld).
In no event shall the liability by reason of this contractual indemnity of
any selling Holder hereunder be greater than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation. Any Holder required to indemnify the Company
as provided above shall cease to have the right to participate in any other
registration pursuant to this Agreement.
(c) In order to provide for just and equitable contribution to joint
liability under the Act in circumstances in which the indemnity provisions
provided for in this section are for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms; then, in
each such case, the Company and such Holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportions as shall be appropriate to reflect
the relative fault of the Company, on the one hand, and the Holder, on the other
hand, with such relative fault determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holder, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
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Holder will be required to contribute any amount in excess of the proceeds to it
of all Registrable Securities sold by it pursuant to such registration
statement, and (B) no person or entity guilty of fraudulent misrepresentation,
within the meaning of Section 11(f) of the Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
ARTICLE 2 - MISCELLANEOUS
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2.1 Amendments and Waivers. The provisions of this Agreement, including
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the provisions of this sentence, may be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may be given, by
written consent of the Company and the Holders of at least sixty percent (60%)
of the outstanding Registrable Securities; provided, that this Agreement may be
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amended with the consent of the holders of less than all Registrable Securities
only in a manner which affects all Registration Securities in the same fashion.
No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such term, condition or provision.
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2.2 Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
2.3 Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
2.4 Notices. All notices required or permitted to be sent shall be sent
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to the addresses of the parties set forth on their respective signature pages,
or to such other address as any party shall provide to the other parties in a
notice sent in accordance with this Agreement. Any notice sent by registered or
certified mail, return receipt requested, or by Federal Express or other
reputable nationwide overnight delivery service, shall be deemed to have been
received by the party to whom it was sent upon receipt of confirmation of
delivery if sent by registered or certified mail and one day following the date
it was sent if sent by Federal Express or other reputable nationwide overnight
delivery service. Any notice sent by any other means shall be deemed to have
been received when it is actually received at the address provided above.
2.5 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of North Carolina.
2.6 Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
2.7 Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. Nothing
in this Agreement shall preclude the Company from entering into any other
agreement having the same or different terms with any Holder or any third party
with respect to registration rights or related matters.
2.8 Parties Benefited. Nothing in this Agreement, express or implied, is
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intended to confer upon any third party any rights, remedies, obligations or
liabilities.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement under seal
as of the date provided below:
THE COMPANY:
XXXXXXXX.XXX, INC.
By: ___________________________________
Xxxxxx X. Xxxxxxxx
Vice President
THE HOLDERS:
________________________________________
Xxxxxx Xxxxx
________________________________________
Xxxxx X. Xxxxx
________________________________________
Guy Orgambide
________________________________________
Xxxxx Xxxxx
________________________________________
Xxxxxx Xxxxx
________________________________________
Xxxxx Xxxxxxx, III
________________________________________
Xxxxx Xxxxxxxx
________________________________________
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Xxxxx Xxxxxxxx
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