EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into as of the 1st day of May, 1999 by xxxxxxxxxx.xxx, inc., a Delaware
corporation ("xxxxxxxxxx.xxx") for the benefit of the Holders (as hereinafter
defined).
RECITALS
A. xxxxxxxxxx.xxx has previously offered and sold shares of its common stock
pursuant to a certain Confidential Private Placement Memorandum dated
December 1, 1998 (as supplemented, amended and modified from time to time,
the "Memorandum").
X. Xxxxxxxxx Financial Group, Inc. ("Xxxxxxxxx") acted as the placement agent
under and pursuant to the Memorandum.
C. xxxxxxxxxx.xxx has previously agreed with Xxxxxxxxx to xxxxx to the
Holders certain so-called piggyback registration rights as more
specifically set forth herein.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Certain Definitions.
a) "Holder" shall mean any person or entity who or which (i) acquired
shares of xxxxxxxxxx.xxx common stock directly from xxxxxxxxxx.xxx
pursuant to the Memorandum, and (ii) continues to own Registrable
Securities.
b) "Registrable Securities" shall mean all shares of xxxxxxxxxx.xxx
common stock sold pursuant to the Memorandum, provided that, such
securities will cease to be Registrable Securities when they have
(a) been effectively registered under the Securities Act and
disposed of in accordance with a registration statement covering
them, (b) been sold to the public in accordance with Rule 144 (or
any similar provision then in force) under the Securities Act, or
(c) been otherwise transferred and new certificates for them not
bearing a Securities Act restrictive legend have been delivered by
xxxxxxxxxx.xxx. Whenever any particular securities cease to be
Registrable Securities, the Holders thereof will be entitled to
receive from xxxxxxxxxx.xxx, without expense, new securities of like
tenor not bearing a restrictive legend.
c) "Securities Act" shall mean the Securities Act of 1933, as amended.
2. Right to Piggyback. Except in the case of xxxxxxxxxx.xxx's initial public
offering, whenever xxxxxxxxxx.xxx proposes to register any of its
securities under the Securities Act and the registration form to be used
may be used for the registration of any Registrable Securities,
xxxxxxxxxx.xxx will (i) give prompt written notice to the Holders of its
intention
to effect such a registration (a "Piggyback Registration"), and (ii)
include in such Piggyback Registration all Registrable Securities in
accordance with the priorities set forth in paragraphs 3 and 4 below with
respect to which xxxxxxxxxx.xxx has received written requests for
inclusion therein within fifteen (15) days after the receipt of
xxxxxxxxxx.xxx's notice.
3. Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of xxxxxxxxxx.xxx and the
managing underwriters advise xxxxxxxxxx.xxx 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,
xxxxxxxxxx.xxx will include in such registration (i) first, the securities
that xxxxxxxxxx.xxx proposes to sell, and (ii) second, the Registrable
Securities and all other securities requested to be included in such
Piggyback Registration pro rata among the Holders and the holders of such
other securities requested to be included in such Piggyback Registration
(as used in this paragraph 3, the "Other Holders") on the basis of the
number of shares which the Holders and the Other Holders propose to
register.
4. Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of
xxxxxxxxxx.xxx's securities and the managing underwriters advise
xxxxxxxxxx.xxx 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, xxxxxxxxxx.xxx will include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration, and (ii) second, the Registrable Securities
and other securities requested to be included in such registration pro
rata among the Holders and the holders of such other securities requested
to be included in such Piggyback Registration (as used in this paragraph
4, the "Other Holders") on the basis of the number of shares which the
Holders and the Other Holders propose to register.
5. Holders Obligations. Prior to being included in any underwritten Piggyback
Registration a Holder must:
a) Agree not to effect any public sale or distribution of equity
securities of xxxxxxxxxx.xxx, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven
(7) days prior to and the ninety (90)-day period beginning on the
effective date of any such underwritten Piggyback Registration in
which Registrable Securities are included on behalf of the Holder,
unless the underwriters managing the registered public offering
otherwise agree and such sale or distribution otherwise complies
with Regulation ss.240.10b-6 of the Securities Exchange Act of 1934,
as amended.
b) Execute, for the benefit of xxxxxxxxxx.xxx and the underwriter of
said Piggyback Registration, any such so-called "lock-up" agreement
as xxxxxxxxxx.xxx or said underwriter may require. Any such lock-up
agreement shall provide, among other things, that the Holder will
not, without the underwriter's and xxxxxxxxxx.xxx's prior written
consent (which consent may be withheld or denied in said
underwriter's and xxxxxxxxxx.xxx's sole and absolute discretion),
offer for sale, sell, sell short, "short against the box", grant any
option, right or warrant with respect to, or otherwise
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dispose of (or announce any intention to undertake any of the
foregoing) all or any of the Registrable Securities for the time
period set forth in said lock-up agreement.
c) Furnish to xxxxxxxxxx.xxx in writing, within fifteen (15) days after
request therefor, such information and affidavits as xxxxxxxxxx.xxx
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law,
indemnify xxxxxxxxxx.xxx, its directors and officers, each person or
entity who controls xxxxxxxxxx.xxx (within the meaning of the
Securities Act), against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement
of material fact contained or required to be contained in the
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to
the extent that such untrue statement or omission is contained or
required to be contained in any information or affidavit so
furnished or required to be so furnished in writing by such Holder.
6. MISCELLANEOUS.
a) NO INCONSISTENT AGREEMENTS. xxxxxxxxxx.xxx will not hereafter enter
into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement.
b) HEADINGS. The headings of various paragraphs of this Agreement have
been inserted for reference only and shall not be a part of this
Agreement.
c) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid
under applicable law. If, however, any provision of this Agreement
shall be determined by a court of competent jurisdiction to be
invalid or unenforceable, such provisions shall be ineffective to
the extent of such invalidity or unenforceability, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement.
d) GOVERNING LAW. This Agreement has been negotiated and delivered at
Denver, Colorado, and shall be governed by and construed in
accordance with the internal laws of the State of Colorado without
reference to (i) its judicially or statutorily pronounced rules
regarding conflict of laws or choice of law; (ii) where any
instrument is executed or delivered; (iii) where any payment or
other performance required by any such instrument is made or
required to be made; (iv) where any breach of any provision of any
such instrument occurs, or any cause of action otherwise accrues;
(v) where any action or other proceeding is instituted or pending;
(vi) the nationality, citizenship, domicile, principal place of
business, or jurisdiction or organization or domestication of any
party; (vii) whether the laws of the form jurisdiction otherwise
would apply the laws of a jurisdiction other than the State of
Colorado; or (viii) any combination of the foregoing.
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e) NOTICES. Any notice required or permitted to be given hereunder
shall be in writing, and shall be either (i) personally delivered,
(ii) sent by U.S. certified or registered mail, return receipt
requested, postage prepaid, or (iii) sent by Federal Express or
other reputable common carrier guaranteeing next business day
delivery, to the respective addresses of the parties set forth
below, or to such other place as any party hereto may by notice
given as provided herein designate for receipt of notices hereunder.
Any such notice shall be deemed given and effective upon receipt or
refusal of receipt thereof by the primary party to whom it is to be
sent.
If to xxxxxxxxxx.xxx: xxxxxxxxxx.xxx, inc.
Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
with a required copy to: Barack Xxxxxxxxxx et al
Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
If to a Holder: To the last address shown on
xxxxxxxxxx.xxx's stockholder records
f) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties with regard to the subject
matter hereof, and there are no other prior or contemporaneous
written or oral agreements, undertakings, promises, warranties, or
covenants respecting such subject matter not expressly set forth
herein.
g) COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, any of which may contain the signatures of
less than all parties, and all of which together shall constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
xxxxxxxxxx.xxx, inc., a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
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Its: President
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