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Exhibit 99.6
NAVIDEC, INC.
REGISTRATION RIGHTS AGREEMENT
JULY 23, 1999
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TABLE OF CONTENTS
(CONTINUED)
PAGE
TABLE OF CONTENTS
PAGE
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1. Registration Rights 1
1.1 Definitions 1
1.2 Demand Registration 2
1.3 Company Registration 4
1.4 Form S-3 Registration 4
1.5 Obligations of the Company 5
1.6 Furnish Information 7
1.7 Expenses of Demand or S-3 Registration 7
1.8 Expenses of Company Registration 7
1.9 No Delay of Registration 7
1.10 Indemnification 8
1.11 Reports under Securities Exchange Act of 1934 10
1.12 Assignment of Registration Rights 10
1.13 Limitations on Subsequent Registration Rights 11
1.14 Termination of Registration Rights 11
2. Miscellaneous 11
2.1 Successors and Assigns 11
2.2 Governing Law 11
2.3 Counterparts 12
2.4 Titles and Subtitles 12
2.5 Notices 12
2.6 Expenses 12
2.7 Amendments and Waivers 12
2.8 Aggregation of Stock 12
2.9 Severability 12
2.10 Entire Agreement 12
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NAVIDEC, INC.
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
23rd day of July, 1999, by and between Navidec, Inc., a Colorado corporation
(the "COMPANY"), and WFC Holdings Corporation (the "INVESTOR").
RECITALS
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WHEREAS, the Company and the Investor are entering into a Stock and
Note Purchase Agreement (the "STOCK AND NOTE PURCHASE AGREEMENT") of even date
herewith;
WHEREAS, in order to induce the Investor to purchase shares of common
stock and acquire the note (the "NOTE") pursuant to the Stock and Note Purchase
Agreement, the Company desires to grant to the Investor the registration and
other rights set forth herein; and
WHEREAS, the Investor desire that this Agreement shall govern the
registration rights of Investor.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. REGISTRATION RIGHTS
. The Company covenants and agrees as follows:
1.1 DEFINITIONS
. For purposes of this Agreement:
(a) The term "ACT" means the Securities Act of 1933, as amended.
(b) The term "FORM S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "HOLDER" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.12 hereof.
(d) The term "1934 ACT" shall mean the Securities Exchange Act of
1934, as amended.
(e) The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
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(f) The term "REGISTRABLE SECURITIES" means (i) the Common Stock
currently held by Investor, (ii) Common Stock issuable or issued upon conversion
of the Note currently held by Investor, and (iii) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of the shares referenced
in (i) or (ii) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his rights under this
Section 1 are not assigned.
(g) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 DEMAND REGISTRATION
. If the Company shall receive at any time a written request from Holders
of at least thirty-five percent (35%) of the Registrable Securities then
outstanding ("INITIATING HOLDERS"), requesting that the Company file a
registration statement under the Act covering the registration of a portion of
the Registrable Securities then outstanding, then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within
sixty (60) days of the receipt of such request, the registration under the Act
of all Registrable Securities which the Holders request to be registered,
subject to the limitations of subsection 1.2(b), within fifteen (15) days of the
mailing of such notice by the Company in accordance with Section 2.5.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
subsection 1.2(a) and the Company shall include such information in the written
notice referred to in subsection 1.2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority of the Initiating
Holders. In such event, the right of any Holder or other holder of securities of
the Company to include securities in such registration shall be conditioned upon
such Holder's or holders' participation in such underwriting and the inclusion
of such Holder's or holders' securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and such
Holder or holder) to the extent provided herein. All Holders and other holders
of securities of the Company proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.5(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this section 1.2, if the underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Initiating Holders shall so advise all
Holders of Registrable
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Securities and other holders of registration rights which would otherwise be
underwritten pursuant hereto, and the number of shares of securities that may be
included in the underwriting on behalf of each Holder or other holder shall be
allocated: (i) first, to the Registrable Securities requested to be included in
such registration by the Holders of Registrable Securities; (ii) second, to
shares of Common Stock held by other holders requested to be included in such
registration, provided that such amount shall be allocated among such other
holders on a pro rata basis based upon their respective percentage of ownership
of the total number of shares of Common Stock then outstanding and (iii) third,
to shares of Common Stock to be offered by the Company in such registration. For
purposes of allocation securities to be included in any offering, for any
selling stockholder which is a partnership or corporation, the partners, retired
partners and stockholders of such holder (and in the case of a partnership, any
affiliated partnerships), or the estates and family members of any such partners
and retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling stockholder," and any pro-rata
reduction with respect to such "selling stockholder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "selling stockholder," as defined in this
sentence.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; PROVIDED, HOWEVER, that the
Company may not utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected one (1) registration
pursuant to this Section 1.2 and such registration has been declared or ordered
effective (or two (2) such registrations if the Company is not S-3 eligible and
the Articles Approval (each as defined in the Purchase Agreement) is not
obtained prior to the expiration of the underwriters lock-up in the Company's
Public Offering; and
(ii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.4 below.
1.3 COMPANY REGISTRATION
.
(a) If (but, without any obligation to do so), the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of
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such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within fifteen (15) days after mailing of such notice by the
Company in accordance with Section 2.5, the Company shall, subject to the
provisions of paragraph (b) below, cause to be registered under the Act all of
the Registrable Securities that each such Holder has requested to be registered.
(b) UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under this Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters). If the total amount of
securities, including Registrable Securities requested by stockholders to be
included in such offering, exceeds the amount of securities that the
underwriters determine in their sole discretion is compatible with the success
of the offering in view of market conditions, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering, but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below thirty-five percent (35%) of the total amount of securities
included in such offering except that the Holders may be excluded entirely if
the underwriters make the determination described above and no other
stockholder's securities are included. Allocation of securities to be sold in
any such offering shall be made pro-rata amongst the selling stockholders
according to the total number of securities held by each such selling
stockholder and entitled to inclusion therein on the basis of a registration
rights agreement with the Company. For purposes of allocation securities to be
included in any offering, for any selling stockholders which is a partnership or
corporation, the partners, retired partners and stockholders of such holder (and
in the case of a partnership, any affiliated partnerships), or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
stockholder," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.4 FORM S-3 REGISTRATION
. In case the Company shall receive from one or more of the Holders a
written request or requests that the Company effect a registration on Form S-3
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
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(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than Two Million Dollars
($2,000,000); (3) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
ninety (90) days after receipt of the request of the Holder or Holders under
this Section 1.4; PROVIDED, HOWEVER, that the Company shall not utilize this
right more than once in any twelve month period; (4) if the Company has, within
the twelve (12) month period preceding the date of such request, already
effected two (2) registrations on Form S-3 for the Holders pursuant to this
Section 1.4; or (5) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. Registrations effected pursuant to this Section 1.4 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY
. Whenever required under this Section 1 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period ending upon the earlier of (i) one
hundred eighty (180) days or (ii) until the distribution contemplated in the
Registration Statement has been completed; PROVIDED, HOWEVER, that such 180-day
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may
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be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant hereunder
to be listed on each securities exchange on which similar securities issued by
the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, (i) an opinion, dated such date,
of the counsel representing the Company for the purposes of such registration,
in substantially the form as may be given to the underwriters in such public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in substantially
the form as may be given by independent certified public accountants to
underwriters in such public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities; provided in
any such case, the Company is required to provide such opinion or letter, as the
case may be, to the underwriters in such offering.
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1.6 FURNISH INFORMATION
.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 if, due to the
operation of subsection 1.6(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.4(b)(2), whichever is applicable.
1.7 EXPENSES OF DEMAND OR S-3 REGISTRATION
. All expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to Section
1.2 or 1.4, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements of one counsel
for the selling Holders shall be borne by the Company; PROVIDED, HOWEVER, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 or 1.4 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless (i) the registration is withdrawn following
any deferral of the registration by the Company pursuant to Section 1.2(c) or
1.4(b)(3); (ii) the registration is withdrawn due to a material adverse change
in the Company's business or financial condition; or (iii) in the case of a
demand registration pursuant to Section 1.2, the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2.
1.8 EXPENSES OF COMPANY REGISTRATION
. The Company shall bear and pay all expenses incurred in connection with
any registration, filing or qualification of Registrable Securities with respect
to the registrations pursuant to Section 1.3 for each Holder (which right may be
assigned as provided in Section 1.12), including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of counsel for
the Company and one counsel for the selling Holders selected by them, but
excluding underwriting discounts and commissions relating to Registrable
Securities.
1.9 NO DELAY OF REGISTRATION
. No Holder shall have any right to obtain or seek an injunction
restraining or otherwise
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delaying any such registration as the result of any controversy that might arise
with respect to the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION
. In the event any Registrable Securities are included in a
registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors and constituent general
partners of 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 or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay, as incurred, to each such Holder, the
officers, directors and constituent general partners of such Holder, each such
underwriter or controlling person any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action, as such expenses are incurred; PROVIDED,
HOWEVER, that the indemnity agreement contained in this Section 1.10(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and the officers,
directors and constituent general partners of such Holder and any controlling
person of any such underwriter or other Holder, severally but not jointly,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 1.10(b), in connection with investigating
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or defending any such loss, claim, damage, liability, or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this Section 1.10(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; PROVIDED, FURTHER,
that in no event shall any Holder's cumulative, aggregate liability under this
Section 1.10(b), under Section 1.10(d), or under such sections together, exceed
the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with one counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10 unless the failure to deliver notice
is materially prejudicial to its ability to defend such action. Any omission to
so deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; PROVIDED, HOWEVER, that (A) in no event shall any Holder's
cumulative, aggregate liability under this Section 1.10(d), or under Section
1.10(b), or under such sections together, exceed the net proceeds from the
offering received by such Holder. Notwithstanding anything to the contrary
herein, no party shall be liable for contribution under this Section 1.10(d),
except to the extent and under the circumstances as such party would have been
liable to indemnity under Section 1.10(a) or Section 1.10(b), as the case may
be, if such indemnification were enforceable under applicable law. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
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(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control with respect to the parties to such agreement.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
. With a view to making available to the Holders the benefits of Rule
144 promulgated under the Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS
. The rights to cause the Company to register Registrable Securities
pursuant to this Section 1 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities who,
after such assignment or transfer, holds at least One Hundred Thousand (100,000)
shares of Registrable Securities (subject to appropriate adjustment for stock
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splits, stock dividends, combinations and other recapitalizations), provided:
(a) the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(b) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement, including without limitation the
provisions of Section 1.14 below; and (c) such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee of a holder of Registrable Securities, (i) the holdings
of affiliated partnerships, limited liability companies and other entities, and
their constituent or retired partners or members (collectively, "AFFILIATED
PERSONS"), and (ii) the holdings of spouses, ancestors, lineal descendants and
siblings who acquire Registrable Securities by gift, will or intestate
succession (collectively, "FAMILY MEMBERS"), shall in each case be aggregated
together, provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall designate in writing to
the Company from time to time a single attorney-in-fact on behalf of the entire
group of Affiliated Persons or Family Members, as the case may be, for the
purpose of exercising any rights, receiving notices or taking any action under
this Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
. From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities which shall not be unreasonably withheld,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would allow such holder or prospective holder to include
such securities in any registration filed under Sections 1.2, 1.3 or 1.4 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders that is included.
1.14 TERMINATION OF REGISTRATION RIGHTS
. The right of any Holder to request registration or inclusion in any
registration pursuant to Section 1.3 shall terminate upon the earlier of (i)
five (5) years after the date hereof and (ii) the date on which all shares of
Registrable Securities beneficially owned or subject to Rule 144 aggregation by
such Holder may immediately be sold under Rule 144 (without regard to Rule
144(k)) during any 90-day period.
2. Miscellaneous
.
2.1 SUCCESSORS AND ASSIGNS
. Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any shares of
Registrable Securities). Nothing in this Agreement, express or implied,
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is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.2 GOVERNING LAW
. This Agreement shall be governed by and construed under the laws of
the State of Delaware as applied to agreements among Delaware residents entered
into and to be performed entirely within Delaware.
2.3 COUNTERPARTS
. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2.4 TITLES AND SUBTITLES
. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
2.5 NOTICES
. All notices and other communications required or permitted hereunder
shall be in writing, shall be effective when given, and shall in any event be
deemed to be given upon receipt or, if earlier, (a) five (5) days after deposit
with the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c)
one (1) business day after the business day of deposit with Federal Express or
similar overnight courier, freight prepaid or (d) one (1) business day after the
business day of facsimile transmission, if delivered by facsimile transmission
with copy by class mail, postage prepaid, and shall be addressed (i) if to a
Holder, at the Holder's address as set forth on EXHIBIT A hereto and (ii) if to
the Company, at the address of its principal corporate offices (attention:
Secretary), or at such other address as a party may designate by ten (10) days'
advance written notice to the other party pursuant to the provisions above.
2.6 EXPENSES
. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.7 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 at least two holders of Registrable Securities
holding at least two thirds (66-2/3%) of the Registrable Securities then
outstanding (or the sale holder of Registrable Securities). Any amendment or
waiver effected in accordance with this
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paragraph shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
2.8 AGGREGATION OF STOCK
. All shares of Preferred Stock of the Company held or acquired or
issuable upon exercise of the Note (or Common Stock issuable upon conversion
thereof) by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability or discharge of any rights under this
Agreement.
2.9 SEVERABILITY
. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
2.10 ENTIRE AGREEMENT
. This Agreement (including the Exhibits hereto, if any) constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and thereof, and supersedes all prior agreements and
understandings with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
COMPANY: NAVIDEC, INC.
By:
-------------------------------------
J. Xxxxx Xxxxxx, President
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
(T) (000) 000-0000
(F) (000) 000-0000
with a copy to:
Benesch, Friedlander, Xxxxxx & Xxxxxxx LLC
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx
(T) (000) 000-0000
(F) (000) 000-0000
INVESTOR: WFC HOLDINGS CORPORATION
By:
-------------------------------------
Xxxxxx Xxxxxxxxx,
Senior Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx, XXX 0000-000
Xxx Xxxxxxxxx, XX 00000
(T) (000) 000-0000
(F) (000) 000-0000
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with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
(T) (000) 000-0000
(F) (000) 000-0000
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