EQUITYHOLDER REGISTRATION RIGHTS AGREEMENT
EXHIBIT
II TO
EXHIBIT
C TO
ASSET
PURCHASE
AGREEMENT
This
Equityholder Registration Rights Agreement (this “Agreement”)
is
entered into as of October 3, 2006 by and between NET
PERCEPTIONS, INC.,
a
Delaware corporation (the “Company”);
and
(ii) CRC
ACQUISITION CO. LLC (the
“Equityholder”).
WHEREAS,
this Agreement is made in connection with (i) the Asset Purchase Agreement,
dated as of September 22, 2006 among the Company, the Equityholder and Purchaser
and (ii) the Stock Purchase Agreement between the Company and Equityholder
dated
as of the date hereof; and
WHEREAS,
in order to induce the Company to enter into the Asset Purchase Agreement,
the
Equityholder has agreed to purchase the Reinvestment Shares with a portion
of
the cash proceeds of the Purchase Price; and
WHEREAS,
in order to induce the Equityholder to purchase the Reinvestment Shares, the
Company has agreed to provide the rights set forth in this Agreement; and
WHEREAS,
the execution of this Agreement by the parties is a condition to the closing
under the Asset Purchase Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, the parties hereby agree
as follows:
1.
Definitions
Capitalized
terms used but not defined herein shall have the respective meanings set forth
in the Asset Purchase Agreement. As used in this Agreement, the following terms
have the following meanings:
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Exchange
Act:
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The
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
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Prospectus:
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The
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement
in
reliance upon Securities Act Rule 430A), 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 such Registration
Statement and all other amendments and supplements to such prospectus,
including post-effective amendments, and all material incorporated
by
reference or deemed to be incorporated by reference in such
prospectus.
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Registrable
Securities:
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All
Reinvestment Shares and any securities issued or issuable in respect
of
any of the Reinvestment Shares pursuant to any stock split, stock
dividend, recapitalization, or similar event.
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Registration
Expenses:
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All
expenses in connection with the performance of or compliance with
Sections
2 and 3 hereof by the Company (other than selling commissions, brokerage
discounts and fees of counsel, accountants or advisors of the Specified
Holders) including, without limitation, all registration and filing
fees,
printing expenses, fees and disbursements of counsel and accountants
for
the Company, blue sky fees and expenses.
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Registration
Statement:
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Any
registration statement of the Company that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including,
without limitation, the Prospectus, amendments and supplements to
such
registration statement (including, without limitation, post-effective
amendments), all exhibits, and all material incorporated by reference
or
deemed to be incorporated reference in such registration statement.
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Restricted
Securities:
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The
Reinvestment Shares, until they are no longer required to bear the
legend
set forth on such securities pursuant to the terms of the Equityholder
Lock-Up Agreement and applicable law.
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Rule
144:
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Rule
144 under the Securities Act, as such Rule may be amended from time
to
time, or any similar rule or regulation hereafter adopted by the
SEC
(excluding Rule 144A).
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Securities
Act:
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The
Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
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Reinvestment
Shares:
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The
3,529,412 shares of the capital common stock of the Company, par
value
$0.0001 per share (“Common
Stock”),
to be issued to, and purchased by, the Equityholder pursuant to the
Asset
Purchase Agreement and the Stock Purchase
Agreement.
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2. Demand
Registrations.
(a) Request
for Registration.
If, on
a date that is at least six months after the Closing Date but prior to the
fifth
anniversary of the Closing Date, the Equityholder submits a written request
(a
“Demand
Notice”)
to the
Company requesting that the Company register Registrable Securities under and
in
accordance with the Securities Act (a “Demand
Registration”).
Upon
receipt of the Demand Notice, the Company shall, as soon as practicable
thereafter, use its reasonable efforts to effect the registration (including,
if
then required, on a Form S-1 or a successor form) of such Registrable Securities
as may be so requested.
-2-
(b) Limitations
on Demand Rights.
Notwithstanding any other provision set forth in this Section 2, the
Equityholder shall not be entitled to deliver a Demand Notice within 90 days
after the effectiveness of any registration statement filed (i) by the
Company pursuant to an underwritten offering by the Company or (ii) on
behalf of any other holder of demand registration rights with respect to the
Common Stock. Provided that all of the Registrable Securities set forth in
Equityholder’s Demand Notice (or such lesser portion thereof as may be agreed by
Equityholder) are registered under a Registration Statement, Equityholder shall
only have the right to issue one Demand Notice. In addition, and notwithstanding
any provision hereof, the Company shall not be required to register any
Registrable Securities pursuant to Section 2(a) that are eligible for sale
pursuant to Rule 144(k) of the Securities Act.
(c) Deferral.
Notwithstanding the foregoing, the Company may defer the filing (but not the
preparation) of a Registration Statement required to be filed by this
Section 2 until a date not later than 90 days after its receipt of a Demand
Notice if:
(x) at
the
time the Company receives the Demand Notice, there is (A) material
non-public information regarding the Company which the Board of Directors of
the
Company (the “Board”)
reasonably determines not to be in the Company’s interest to disclose and which
the Company is not otherwise required to disclose, or (B) 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; or
(y) prior
to
receiving the Demand Notice, the Board had determined to effect an underwritten
offering.
A
deferral of the filing of a Registration Statement pursuant to this
Section 2(c) shall be lifted, and the requested Registration Statement
shall be filed forthwith, if, (1) in the case of a deferral pursuant to
clause (x)(A), the material non-public information is made public by the
Company or becomes no longer material, (2) in the case of a deferral
pursuant to clause (x)(B), the significant business opportunity is
disclosed by the Company or is terminated, or (3) in the case of a deferral
pursuant to clause (y), the proposed registration for the Company’s account
is abandoned. In order to defer the filing of a Registration Statement pursuant
to this Section 2(c), the Company shall promptly (but in any event within
20 days), upon determining to seek such deferral, deliver to the Equityholder
a
certificate signed by an executive officer of the Company stating that the
Company is deferring such filing pursuant to this Section 2(c) and
containing an approximation of the anticipated delay.
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3. Piggy-Back
Registration.
(a) Notice
of Registration.
If at
any time or from time to time, the Company shall determine to register or shall
be required to register any of its common stock, whether or not for its own
account, other than a registration effected on Form S-4 (or its successor),
or a registration relating to employee benefit plans (whether effected on
Form S-8 or its successor), the Company shall:
(i) provide
to the Equityholder written notice thereof at least fifteen days prior to the
filing of the Registration Statement by the Company in connection with such
registration; and
(ii) include
in such Registration Statement, and in any underwriting involved therein (and
on
the same terms and conditions provided under such underwriting, including any
restrictions on sale thereunder), all those Registrable Securities specified
in
a written request by the Equityholder received by the Company within five days
after the Company mails the written notice referred to above, subject to the
provisions of Section 3(b) below. However, if a Registration Statement
covered by this Section 3 is an underwritten registration on behalf of the
Company, and the 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 in such offering without adversely
affecting the marketability of the offering, the Company shall include in such
registration: (1) first, the securities the Company proposes to sell,
(2) second, the Registrable Securities and other securities requested to be
included in such registration, pro rata among the Equityholder and any other
security holders that has requested to sell Company securities on the basis
of
the number of shares owned by each the Equityholder and other selling security
holders;
provided,
that the Company shall not be required to include in any Registration Statement
or in any underwriting, or provide notice with respect to, any Registrable
Securities pursuant to this Section 3 that are eligible for sale pursuant to
Rule 144(k) of the Securities Act.
(b) Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any Registration Statement
initiated by it under this Section 3 prior to the effectiveness of such
Registration Statement whether or not the Equityholder has elected to include
Registrable Securities in such Registration Statement.
4. Expenses
and Procedures
(a)
Expenses
of Registration.
All
Registration Expenses shall be paid by the Company. Selling commissions,
brokerage discounts and fees of counsel and advisors for the Equityholders
shall
be paid solely by the Equityholders.
(b)
Registration
Procedures.
Subject
to compliance by the Company with applicable securities laws, rules and
regulations, and the rules and regulations of the primary exchange on which
Common Stock is listed, in the case of each registration, qualification or
compliance effected by the Company pursuant to Section 2 or 3
hereof:
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(i) The
Company will keep the Equityholder advised as to the initiation of registration,
qualification and compliance and as to the completion thereof. At its own
expense, the Company will furnish such number of conformed copies of the
Registration Statement and other documents incident thereto as the Equityholder
from time to time may reasonably request.
(ii) To
the
extent necessary for the disposition of the Reinvestment Shares, the Company
will use its commercially reasonable efforts to register or qualify any
Registrable Securities under such state securities or blue sky laws of such
jurisdictions as the Equityholder shall reasonably request, and do any and
all
other acts and things which may be necessary or advisable to enable each
Equityholder to consummate the disposition in such jurisdictions of its
Registrable Securities covered by the Registration Statement; provided,
however,
that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or subject the Company to
taxation in any jurisdiction in which it is not so qualified.
(iv) The
Company will promptly notify each of the Equityholder owning Registrable
Securities covered by any Registration Statement, at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act, of 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 any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
the
circumstances then existing, and at the request of any such seller prepare
and
furnish to such seller, a reasonable number of copies of a supplement to or
an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such Prospectus
shall not include 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 not misleading in the light of the circumstances then
existing.
(v) The
Company will use its commercially reasonable efforts to list such Registrable
Securities on the primary securities exchange on which the Common Stock is
then
listed, if such Registrable Securities are not already so listed.
(vi) The
Company will provide a transfer agent and registrar for all Registrable
Securities on or before the date that the Reinvestment Shares are registered
pursuant to a Registration Statement.
(vii) In
connection with the preparation and filing of the Registration Statement, and
before filing the Registration Statement or any other document in connection
therewith, the Company will give the Equityholder the opportunity to review
the
Registration Statement, each prospectus included therein or filed with the
SEC,
each amendment thereof of supplement thereto and give each of the aforementioned
Persons such opportunities to discuss the business of the Company with its
officers as shall be reasonably necessary to conduct a reasonable investigation
within the meaning of the Securities Act.
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(c)
Information.
The
Equityholder shall furnish such information regarding the distribution of such
Registrable Securities as the Company may from time to time reasonably request,
and the Company may exclude from such registration the Registrable Securities
of
the Equityholder if it unreasonably fails to furnish such information after
receiving such request. Such information shall be true and complete and it
shall
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.
(d) Delay
or Suspension. Notwithstanding
anything herein to the contrary, the Company may, at any time, suspend the
effectiveness of any Registration Statement for a period of not more than 45
days in the aggregate in any period of twelve consecutive calendar months (a
“Suspension
Period”)
by
giving notice to the Equityholder, if the Company shall have determined that
the
Company may be required to disclose any material corporate development which
disclosure may have a material effect on the Company. The Equityholder agrees
by
acquisition of such Registrable Securities that, upon receipt of any notice
from
the Company of a Suspension Period, the Equityholder shall forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until the Equityholder (i) is advised in writing by
the
Company that the use of the applicable Prospectus may be resumed, (ii) have
received copies of a supplemental or amended prospectus, if applicable, and
(iii) have received copies of any additional or supplemental filings which
are
incorporated or deemed to be incorporated by reference in such Prospectus.
The
Company shall prepare, file and furnish to the Equityholders promptly upon
the
expiration of any Suspension Period, appropriate supplements or amendments,
if
applicable, to the Prospectus and appropriate documents, if applicable,
incorporated by reference in the Registration Statement.
5. Indemnification
(a) Indemnification
by the Company.
The
Company shall indemnify and hold harmless, to the fullest extent permitted
by
law, the Equityholder, its respective officers, members, managers, advisors,
agents and employees, each person who controls the Equityholder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act),
and the officers, directors, stockholders, partners, members, managers,
advisors, agents and employees of any such controlling person, from and against
all losses, claims, damages, liabilities, costs (including, without limitation,
all reasonable attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained or incorporated by reference in any
Registration Statement, Prospectus or preliminary prospectus, or arising out
of
or based upon any omission or alleged omission of a material fact required
to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made (in the case of any Prospectus) not
misleading, except to the extent such untrue statement or omission is contained
in any information furnished in writing by the Equityholder to the Company
for
use in such Registration Statement, Prospectus or preliminary prospectus or
any
amendment or supplement thereto; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus
or
Prospectus if (i) the Equityholder failed to send or deliver a copy of the
Prospectus or Prospectus supplement with or prior to the delivery of written
confirmation of the sale of Registrable Securities, and the Prospectus or any
supplement thereto would have corrected such untrue statement or omission or
(ii) the Equityholder sends or delivers a copy of the Prospectus or any
supplement thereto after receiving written notification from the Company that
the Prospectus or any such supplement contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading. If requested, the Company shall also indemnify selling brokers
and
similar securities industry professionals participating in the distribution,
their officers, directors, agents and employees and each person who controls
such persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) to the same extent as provided above with respect to
the
indemnification of the Equityholder. Such indemnifications shall remain in
full
force and effect regardless of any investigation made by or on behalf of any
Equityholder and any of its officers, directors, stockholders, partners,
members, managers, advisors, agents, employees or controlling persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) after the date hereof and shall survive any transfer of Registrable
Securities.
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(b) Indemnification
by the Equityholders.
The
Equityholder hereby agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its officers, directors, stockholders, partners,
members, managers, advisors, agents and employees, each person who controls
the
Company (within the meaning of Section 15 of the Securities Act or Section
20 of
the Exchange Act) and the officers, directors, stockholders, partners, members,
managers, advisors, agents and employees of any such controlling person, from
and against all Losses arising out of or based upon (y) any untrue statement
of
a material fact contained or incorporated by reference in any Registration
Statement, Prospectus or preliminary prospectus, or arising out of or based
upon
any omission of a material fact required to be stated therein or necessary
to
make the statements therein in light of the circumstances under which they
were
made (in the case of any Prospectus) not misleading, to the extent, but only
to
the extent, that such untrue statement or omission is contained in any
information furnished by the Equityholder to the Company for use in such
Registration Statement, Prospectus or preliminary prospectus or any amendment
or
supplement thereto or (z) the Equityholder sending or delivering a copy of
the
Prospectus or any supplement thereto to another party after receiving written
notification from the Company that the Prospectus or any such supplement
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading. If requested, the
Equityholder shall also indemnify selling brokers and similar securities
industry professionals participating in the distribution, their officers,
directors, agents and employees and each person who controls such persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Company. The Company shall be entitled to receive
indemnities from accountants, underwriters, selling brokers, dealer managers
and
similar securities industry professionals participating in the distribution
to
the same extent as provided above with respect to information so furnished
by
such persons for inclusion in any Registration Statement, Prospectus or
preliminary prospectus, provided
that the
failure of the Company to obtain any such indemnity shall not relieve the
Company of any of its obligations hereunder. Such indemnifications shall remain
in full force and effect regardless of any investigation made by or on behalf
of
the Company of the information provided by the Equityholder prior to Closing,
and any of their respective officers, directors, stockholders, partners,
members, managers, advisors, agents, employees or controlling persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) before or after the date hereof and shall survive any transfer of
Registrable Securities.
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(c) Conduct
of Indemnification Proceedings.
If any
action or proceeding (including any governmental investigation or inquiry)
shall
be brought or any claim shall be asserted against, without limitation, any
Person entitled to indemnity hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the party from which such indemnity
is
sought (the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall 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 the defense
thereof; provided,
however,
that
the failure or delay of an Indemnified Party to so notify the Indemnifying
Party
shall release the Indemnifying Party from its obligations hereunder only if
and
then only to the extent the Indemnifying Party is prejudiced by such failure
or
delay. All such fees and expenses (including, without limitation, any fees
and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the Indemnified Party, as incurred,
within 20 days of written notice thereof to the Indemnifying Party; provided,
however,
that if
the Indemnifying Party is subsequently determined not to have been liable to
the
Indemnified Party in accordance with this Section 5, such fees and expenses
shall be returned promptly to the Indemnifying Party. Any such Indemnified
Party
shall have the right to employ separate counsel if any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be borne solely by such 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, claim or proceeding and to employ counsel reasonably satisfactory to
the
Indemnified Party in any such action, claim or proceeding or (iii) the named
parties to any such action, claim or proceeding (including any impleaded
parties) include both such Indemnified Party and the Indemnifying Party, and
such Indemnified Party shall have been advised by counsel that there may be
one
or more legal defenses available to it that are different from or additional
to
those available to the Indemnifying Party (in which case, if such Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense of such action, claim
or
proceeding on behalf of such indemnified party, it being understood, however,
that the Indemnifying Party shall not, in connection with anyone such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one counsel (together with appropriate local counsel) at any time for all such
Indemnified Parties, unless in the opinion of counsel for such Indemnified
Party
a conflict of interest may exist between such Indemnified Party and any other
of
such Indemnified Parties with respect to such action, claim or proceeding,
in
which event the Indemnifying Party shall be obligated to pay the fees and
expenses of such additional counsel or counsels). No Indemnifying Party will
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the release of such Indemnified Party
from all liability in respect to such claim or litigation without the written
consent of the Indemnified Party. No Indemnified Party will consent to entry
of
any judgment or enter into any settlement that imposes any continuing obligation
or restriction on the Indemnified Party without the written consent of the
Indemnified Party. No Indemnified Party shall consent to entry of any judgment
or enter into any settlement without the written consent of the Indemnifying
Party from which indemnity or contribution is sought.
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(d) Contribution.
If the
indemnification provided for in this Section 5 is unavailable to an Indemnified
Party under Section 5(a) or (b) hereof (other than by reason of exceptions
provided in those Sections) in respect of any Losses, then each applicable
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 the Indemnified Party shall be determined by reference to, among
other
things, whether any action in question, including any untrue statement 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) hereof, any legal or other fees or expenses reasonably incurred
by such party in connection with any action, suit, claim, investigation or
proceeding.
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.
6. Reports
Under Exchange Act
Commencing
on the nine month anniversary of the Closing Date, with a view to making
available to the Equityholder the benefits of Rule 144 or any successor rule
adopted by the SEC, in the event a Registration Statement with respect to the
Reinvestment Shares is not then effective with the SEC, the Company agrees
to:
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(a)
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use
its commercially reasonable efforts to make and keep public information
available, as those terms are understood and defined in Rule
144;
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(b)
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use
its commercially reasonable efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the
Securities Act or the Exchange Act;
and
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(c)
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furnish
to the Equityholder within a reasonable time following receipt of
a
written request therefor (1) a written statement by the Company as
to its
compliance with the reporting requirements of Rule 144, the Securities
Act
and the Exchange Act, (2) 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 (3) such other information as may be reasonably requested
in
availing the Equityholder to sell Reinvestment Shares pursuant to
Rule
144.
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7. Miscellaneous
(a)
Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented without the written consent of
Equityholders holding at least a majority in interest of the Registrable
Securities. No waiver of any provision of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), shall constitute a continuing waiver unless otherwise expressly
provided nor shall be effective unless in writing and executed by the waiving
party.
(b) Notices.
All
notices and other communications hereunder will be in writing and will be deemed
received (a) the date delivered if delivered personally, (b) three (3) Business
Days after being mailed by registered or certified mail (return receipt
requested), (c) one (1) Business Day after being delivered to any reputable
nationwide overnight courier service and (d) upon confirmation of delivery,
if
delivered by facsimile, at the following addresses (or at such other address
for
a party as will be specified by like notice):
(i) If
to the
Company, to:
Net
Perceptions, Inc.
Xxx
Xxxxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attn: Xxxxx
X.
Xxxxx
Fax: 000-000-0000
with
a
required copy to:
Xxxx
Xxxxxxx, P.C.
1350
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
X.
Xxxxxxxx
Fax:
(000)
000-0000
(ii) If
to the
Equityholder:
CRC
Acquisition Co. LLC
c/o
Riparian Partners, Ltd.
0000
Xxxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxx 00000
Attn: Xxxxxxx
XxxXxXxxxxx
Fax: (000)
000-0000
with
a
required copy to:
Xxxxxxxxx
Traurig, LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxxx
X.
Xxxxxxx
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(c) Governing
Law, Venue and Waiver of Jury Trial.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER AND IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CHOICE OF LAW RULES THAT
MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
EACH
PARTY TO THIS AGREEMENT, BY ITS EXECUTION HEREOF, (I) HEREBY IRREVOCABLY
SUBMITS, TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE (OR IF JURISDICTION THERETO IS NOT PERMITTED BY
LAW, THE STATE COURTS OF THE STATE OF DELAWARE LOCATED IN NEW CASTLE COUNTY
FOR
THE PURPOSE OF ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT
OR
OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON
THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF, (II) HEREBY WAIVES,
AND
AGREES TO CAUSE EACH OF ITS SUBSIDIARIES TO WAIVE, TO THE EXTENT NOT PROHIBITED
BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, AND AGREES NOT TO ALLOW ANY OF
ITS
SUBSIDIARIES TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY
SUCH
ACTION, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF
THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS
IS
IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE
ENFORCED IN OR BY SUCH COURT AND (III) HEREBY AGREES NOT TO COMMENCE OR TO
PERMIT ANY OF ITS SUBSIDIARIES TO COMMENCE ANY ACTION, CLAIM, CAUSE OF ACTION
OR
SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER
HEREOF OTHER THAN BEFORE ONE OF THE ABOVE-NAMED COURTS NOR TO MAKE ANY MOTION
OR
TAKE ANY OTHER ACTION SEEKING OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL
OF
ANY SUCH ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR
OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION TO ANY COURT OTHER THAN ONE
OF
THE ABOVE-NAMED COURTS WHETHER ON THE GROUNDS OF INCONVENIENT FORUM OR
OTHERWISE. EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH
PROCEEDING IN ANY MANNER PERMITTED BY DELAWARE LAW, AND AGREES THAT SERVICE
OF
PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 7(b) IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE PROVIDED THAT THE
PARTY
DELIVERING SUCH NOTICE RECEIVES A SIGNED RETURN RECEIPT IN RESPECT
THEREOF.
EACH OF
THE PARTIES HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER
AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM
IN
RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT,
TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR
BASED
UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH
OR
RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH OF THE PARTIES AGREE AND
ACKNOWLEDGE THAT IT HAS BEEN INFORMED THAT THIS SECTION 7(c) CONSTITUTES A
MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES HERETO ARE RELYING AND WILL
RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER AGREEMENTS RELATING HERETO
OR
CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY
OF THIS SECTION 7(c) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
-11-
(d)
Counterparts.
This
Agreement may be executed in any number of 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.
(e) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(f)
Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, void
or
unenforceable.
(g) Successors
and Assigns. All
of
the terms and provisions of this Agreement shall be binding upon and shall
inure
to the benefit of the successors and permitted assigns of the parties
hereto;
provided, however, that (a) no party shall be able to transfer or assign any
of
their rights and obligations hereunder without the prior written consent of
the
other party hereto.
(h) Entire
Agreement.
The
Equityholder acknowledges that this Agreement is entered into pursuant to,
and
the issuance and delivery of the Reinvestment Shares is being made pursuant
to,
the Stock Purchase Agreement and that this Agreement is subject to the further
terms and conditions thereof. This Agreement, the Equityholder Lock-Up
Agreement, the Asset Purchase Agreement and the Stock Purchase Agreement
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersede all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to such subject matter.
[SIGNATURE
PAGE FOLLOWS]
-12-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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NET
PERCEPTIONS, INC.
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| By: | ||
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Name:
Xxxxx X. Xxxxx
Title:
Chief Administrative Officer
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CRC
ACQUISITION CO. LLC
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| By: | ||
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Name:
Title:
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