SUPER LEAGUE GAMING, INC. INVESTORS’ RIGHTS AGREEMENT
Exhibit 10.19
SUPER
LEAGUE GAMING, INC. INVESTORS’ RIGHTS AGREEMENT
THIS INVESTORS’ RIGHTS AGREEMENT
(this “Agreement”),
is made as of __________________,
by and among Super League Gaming, Inc., a Delaware corporation (the
“Company”),
and the purchasers of the Company’s 9% Secured Convertible
Promissory Notes (the “Investors”).
RECITALS
WHEREAS, the Company and the Investors
are parties to that certain Note Purchase Agreement of even date
herewith (the “Purchase
Agreement”).
WHEREAS, in order to induce the Company
to enter into the Purchase Agreement and to induce the Investors to
invest funds in the Company pursuant to the Purchase Agreement, the
Investors and the Company hereby agree that this Agreement shall
govern the rights of the Investors to cause the Company to register
shares of common stock issuable to the Investors upon conversion of
the 9% Secured Convertible Promissory Notes (collectively, the
“Notes”)
and upon exercise of the Callable Common Stock Purchase Warrants
(collectively, the “Warrants”)(the
Notes and the
Warrants are collectively referred to herein as the
“Securities”),
to receive certain information from the Company, and to participate
in future equity offerings by the Company, and shall govern certain
other matters as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties to this
Agreement agree as follows:
1.
Definitions. For
purposes of this Agreement:
1.1 “Affiliate”
means, with respect to any specified Person, any other Person who,
directly or indirectly, controls, is controlled by or is under
common control with such Person, including, without limitation, any
general partner, managing member, officer or director of such
Person, or such Person’s principal, or any venture capital
fund, financial investment firm or collective investment vehicle
now or hereafter existing that is controlled by one or more general
partners or managing members (or any affiliates thereof, which
shall include any series or cell of a general partner or managing
member that is structured as a series limited liability company)
of, or shares the same management company with, such Person. For
purposes of this definition, the terms “controlling,”
“controlled by,” or “under common control
with” shall mean the possession, directly or indirectly,
of (a) the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract, or otherwise, or (b) the power to elect or appoint at
least 50% of the directors, managers, general partners, or Persons
exercising similar authority with respect to such Person. For the
avoidance of doubt, an “Affiliate” of a specified
Person shall include (x) such Person’s partners, members,
stockholders, other equity owners, officers, directors,
managers, former or retired partners, former or retired members,
former or retired stockholders, former or retired other equity
owners, and the estate of any of the foregoing and (y) a parent or
subsidiary of a Person that is an entity.
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1.2 “Board”
means the board of directors of the Company.
1.3 “Common
Stock” means shares of the Company’s common
stock, par value $0.001 per share.
For the avoidance of doubt, the term Common Stock as used herein
shall include shares of Common Stock issuable upon conversion of
the Notes and exercise of the Warrants.
1.4 “Damages”
means any loss, damage, claim or liability (joint or several) to
which a party hereto may become subject under the Securities Act,
the Exchange Act, or other federal or state law, insofar as such
loss, damage, claim or liability (or any action in respect thereof)
arises out of or is based upon: (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement of the Company, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements
thereto, and any free-writing prospectus and any issuer information
(as defined in Rule 433 of the Securities Act) filed or required to
be filed pursuant to Rule 433(d) under the Securities Act or any
other document incident to such registration prepared by or on
behalf of the Company or used or referred to by the Company; (ii)
an 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 indemnifying party (or any of its agents or Affiliates) of
the Securities Act, the Exchange Act, any state securities law, or
any rule or regulation promulgated under the Securities Act, the
Exchange Act, or any state securities law.
1.5 “Deemed
Liquidation Event” has the meaning given to such term
in the Restated Certificate in effect on the date
hereof.
1.6 “Derivative
Securities” means any securities or rights convertible
into, or exercisable or exchangeable for (in each case, directly or
indirectly), Common Stock, including the Notes, Warrants, stock
options and other warrants to purchase shares of the
Company’s Common Stock.
1.7 “Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
1.8 “Excluded
Registration” means (i) a registration relating to the
sale of securities to employees of the Company or a subsidiary
pursuant to a stock option, stock purchase, or similar plan; (ii) a
registration relating to an SEC Rule 145 transaction; or (iii) a
registration on any form that 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.
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1.9 “Exempted
Securities” means: (i) securities issued pursuant to a
Recapitalization; (ii) securities issued to employees, consultants,
officers or directors for bona fide compensatory
purposes pursuant to the Company’s existing equity incentive
plan(s), such issuances to be approved by a majority of the Board;
(iii) securities issued upon exercise or conversion of options,
warrants or other exercisable or convertible securities outstanding
as of April 24, 2018; (iv) securities issued in connection with the
closing of the IPO; (v) securities issued in connection with a bona
fide acquisition of another entity by the Company by merger,
purchase of substantially all of the assets or other reorganization
or a joint venture agreement approved by a majority of the Board;
(vi) securities issued to banks, equipment lessors or other
financial institutions pursuant to a debt financing or commercial
leasing transaction approved by a majority of the Board; (vii)
securities issued in connection with sponsored research,
collaboration, technology license, development, marketing or other
similar agreements or strategic partnerships approved by a majority
of the Board; and (viii) securities issued to suppliers or third
party service providers in connection with the provision of goods
or services pursuant to transactions approved by a majority of the
Board.
1.10 “Form
1-A” means such
form under the Securities Act as in effect on the date hereof or
any successor offering statement under the Securities Act
subsequently adopted by the SEC.
1.11 “Form
S-1” means such form under the Securities Act as in
effect on the date hereof or any successor registration form under
the Securities Act subsequently adopted by the SEC.
1.12 “Form
S-3” means such form under the Securities Act as in
effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC that permits
incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.13 “GAAP”
means generally accepted accounting principles in the United
States, consistently applied.
1.14 “Holder”
means any holder of Registrable Securities who is a party to
this
Agreement.
1.15 “Immediate
Family Member” means a child, stepchild, grandchild,
parent,
stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including, adoptive relationships, of a natural person referred to
herein.
1.16 “Initiating
Holders” means, collectively, Holders who properly
initiate a registration request under this Agreement.
1.17 “IPO”
means the Company’s initial public offering of its Common
Stock.
1.18 “New
Securities” means, collectively, equity securities of
the Company, whether or not currently authorized, as well as any
rights, options, or warrants to purchase such equity securities, or
securities of any type whatsoever that are, or may become,
convertible or exchangeable into or exercisable (in each case,
directly or indirectly) for such equity securities.
1.19 “Person”
means any individual, corporation, partnership, trust, limited
liability company, association or other entity.
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1.20 “Recapitalization”
means any stock dividend, stock split, combination of shares,
reorganization, recapitalization, reclassification or other similar
event.
1.21 “Registrable
Securities” means (i) any Common Stock issued pursuant
to conversion of the Notes and upon exercise of the Warrants (the
Notes and Warrants being issued pursuant to the Purchase
Agreement), (ii) any Common Stock, or any Common Stock issued or
issuable (directly or indirectly) upon conversion and/or exercise
of any other securities of the Company, currently owned, or
acquired after the date hereof, by any Investor or its
Affiliate(s); and
(iii)
any Common Stock issued as (or issuable upon the conversion or
exercise of any warrant, right, or other security that is issued
as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares referenced in clauses
(i)-(ii) above held by an Investor; excluding in all cases,
however, any Registrable Securities sold by a Person in a
transaction in which the applicable rights under this Agreement are
not assigned pursuant to Section 6.1,
and excluding for purposes of Section 2 any shares for which
registration rights have terminated pursuant to Section 2.12 of this Agreement.
1.22 “Registrable
Securities then outstanding” means the number of
shares determined by adding the number of shares of outstanding
Common Stock that are Registrable Securities and the number of
shares of Common Stock issuable (directly or indirectly) pursuant
to then exercisable and/or convertible securities that are
Registrable Securities.
1.23 “Restated
Certificate” means the Company’s Amended and
Restated Certificate of Incorporation, as amended from time to
time.
1.24 “Restricted
Securities” means the securities of the Company
required to be notated with the legend set forth in Section
2.11(b) hereof.
1.25 “SEC”
means the Securities and Exchange Commission.
1.26 “SEC
Rule 144” means Rule 144 promulgated by the SEC under
the Securities Act.
Act.
1.27
“SEC
Rule 145” means Rule 145 promulgated by the SEC under
the Securities
1.28
“Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations
promulgated thereunder.
1.29 “Selling
Expenses” means all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of
Registrable Securities, and fees and disbursements of counsel for
any Holder, all of which shall be borne and paid for by the
Holder(s) as described in this Agreement,
except for the fees and disbursements of the Selling Holder Counsel
(as defined herein) borne and paid by the Company as provided in
Section 2.6.
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2.
Registration
Rights. The Company covenants and agrees as follows:
2.1 Company
Registration.
(a) Form 1-A.
Approximately thirty percent (30.0%) (which percentage may be
increased based on the aggregate offering amount stated in the Form
1-A) of (i) the shares of common stock issuable upon conversion of
the Notes (“Conversion
Shares”), or (ii) the shares of common stock issuable
upon exercise of the Warrants (“Warrant
Shares”), shall be made available for resale in the
Company’s Form 1-A filed with the SEC. The Company shall have
the exclusive right to determine whether the Conversion Shares or
Warrant Shares are included in the Form 1-A. The shares of common
stock made available for resale on Form 1-A shall be subject to the
following lock-up restriction: (x) 20% shall become freely
tradeable on each of the 60-day, 90-day, 120-day, 150-day and
180-day anniversaries of the IPO closing.
(b) Form S-1. Within 45
days of closing of the IPO, the Company shall file a registration
statement on Form S-1 with the SEC to register the Conversion
Shares and Warrant Shares not otherwise included in the Form 1-A.
The shares of common stock registered in the Form S-1 shall be
subject to the following lock-up restriction: (x) 20% shall become
freely tradeable on each of the 60- day, 90-day, 120-day, 150-day
and 180-day anniversaries of the date the S-1 is declared effective
by the SEC.
2.2 Demand
Registration.
(a) Form S-1 Demand. If
at any time after the earlier of (i) three (3) years after the date
of this Agreement or (ii) one (1) year after the effective date of
the registration statement for the IPO, the Company receives a
request from Holders of at least fifty percent (50%) of the
Registrable Securities then outstanding that the Company file a
Form S-1 registration statement with respect to Registrable
Securities then outstanding with an anticipated aggregate offering
price, net of Selling Expenses, in excess of $10,000,000, then the
Company shall (x) within ten (10) days after the date such request
is given, give notice thereof (the “Demand
Notice”) to all Holders other than the Initiating
Holders; and (y) as soon as practicable, and in any event within
one hundred twenty (120) days after the date such request is given
by the Initiating Holders, file such Form S-1 registration
statement under the Securities Act covering all Registrable
Securities that the Initiating Holders requested to be registered
and any additional Registrable Securities requested to be included
in such registration by any other Holders, as specified by notice
given by each such Holder to the Company within twenty (20) days of
the date the Demand Notice is given, and in each case, subject to
the limitations of Subsections 2.2(c) and 2.3.
(b) Form S-3 Demand. If
at any time when it is eligible to use a Form S-3 registration
statement, the Company receives a request from Holders of at least
fifty percent (50%) of the Registrable Securities then outstanding
that the Company file a Form S-3 registration statement
with
respect to outstanding Registrable Securities of such Holders
having an anticipated aggregate offering price, net of Selling
Expenses, of at least $5,000,000, then the Company shall (i) within
ten (10) days after the
date such request is given, give a Demand Notice to all Holders
other than the Initiating Holders; and (ii) as soon as practicable,
and in any event within sixty (60) days after the date such request
is given by the Initiating Holders, file such Form S-3 registration
statement under the Securities Act covering all Registrable
Securities requested to be included in such registration by any
other Holders, as specified by notice given by each such Holder to
the Company within twenty
(20)
days of the date the Demand Notice is given, and in each case,
subject to the limitations of Subsections 2.2(c) and
2.3.
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(c) Notwithstanding the
foregoing obligations, if the Company furnishes to Holders
requesting a registration pursuant to this Subsection 2.1 a certificate signed by the Company’s
chief executive officer stating that in the good faith judgment of
the Board it would be materially detrimental to the Company and its
stockholders for such registration statement to either become
effective or remain effective for as long as such registration
statement otherwise would be required to remain effective, because
such action would (i) materially interfere with a significant
acquisition, corporate reorganization, or other similar transaction
involving the Company; (ii) require premature disclosure of
material information that the Company has a bona fide business
purpose for preserving as confidential; or (iii) render the Company
unable to comply with requirements under the Securities Act or
Exchange Act, then the Company shall have the right to defer taking
action with respect to such filing for a period of not more than
one hundred eighty (180) days after the request of the Initiating
Holders is given; provided, however, that the Company may not
invoke this right more than once in any twelve (12) month period;
and provided further that the Company shall not register any
securities for its own account or that of any other stockholder
during such ninety (90) day period other than an Excluded
Registration.
(d) The Company shall not
be obligated to effect, or to take any action to effect, any
registration pursuant to Subsection 2.2(a): (i) during the period that is ninety (90)
days before the Company’s good faith estimate of the date of
filing of, and ending on a date that is one hundred eighty (180)
days after the effective date of, a Company-initiated registration,
provided that the Company is actively employing in good faith
commercially reasonable efforts to cause such registration
statement to become effective; (ii) after the Company has effected
two registrations pursuant to Subsection 2.2(a); or (iii) 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 Subsection 2.2(b). The
Company shall not be obligated to effect, or to take any action to
effect, any registration pursuant to Subsection 2.2(b): (i) during the period that is forty-five
(45) days before the Company’s good faith estimate of the
date of filing of, and ending on a date that is ninety
(90)
days after the effective date of, a Company-initiated registration,
provided that the Company is actively employing in good faith
commercially reasonable efforts to cause such registration
statement to become effective; or (ii) if the Company has effected
two registrations pursuant to Subsection 2.2(b) within the twelve (12) month period
immediately preceding the date of such request. A registration
shall not be counted as “effected” for purposes of this
Subsection 2.2(d) until such time as the
applicable registration statement has been declared effective by
the SEC, unless the Initiating Holders withdraw
their request for such registration, elect not to pay the
registration expenses therefor, and forfeit their right to one (1)
demand registration statement pursuant to Subsection 2.6, in which case such withdrawn registration
statement shall be counted as “effected” for purposes
of this Subsection 2.2(d).
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2.3 Underwriting
Requirements.
(a) If, pursuant to
Section 2.2, 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 Section 2.2, and the Company shall include
such information in the Demand Notice. The underwriter(s) will be
selected by the Company and shall be reasonably acceptable to a
majority in interest of the Initiating Holders. In such event, the
right of any Holder to include such Holder’s Registrable
Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion
of such Holder’s Registrable Securities in the underwriting
to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the
Company as provided in Section 2.4(e))
enter into an underwriting agreement in customary form with the
underwriter(s) selected for such underwriting. Notwithstanding any
other provision of this Section 2.4, if the managing underwriter(s)
advise(s) the Initiating Holders in writing that marketing or other
factors, in its reasonable discretion, require a limitation on the
number of shares to be underwritten, or the elimination thereof,
then the Initiating Holders shall so advise all Holders of
Registrable Securities that otherwise would be underwritten
pursuant hereto, and the number of Registrable Securities that may
be included in the underwriting shall be allocated among such
Holders of Registrable Securities, including the Initiating
Holders, in proportion (as nearly as practicable) to the number of
Registrable Securities owned by each Holder or in such other
proportion as shall unanimously be agreed to by all such selling
Holders; provided, however,
that the number of Registrable Securities held by the Holders, to
be included in such underwriting, shall only be reduced in
proportion to the percentage reduction of other registrable
securities of the Company included in such underwriting and not
part of the Registrable Securities defined herein. To facilitate
the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100)
shares.
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(b) In connection with
any offering involving an underwriting of shares of the
Company’s capital stock pursuant to Section 2.3, the Company
shall not be required to include any of the Holders’
Registrable Securities in such underwriting unless the Holders
accept the terms of the underwriting as agreed upon between the
Company and its underwriters, and then only in such quantity, if
any, as the underwriters in their sole discretion determine will
not jeopardize the success of the offering by the Company. If the
total number of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds
the number of securities to be sold (other than by the Company),
that the underwriters in their reasonable discretion determine is
compatible with the success of the offering, then the Company shall
be required to include in the offering only that number of such
securities, including Registrable Securities, which the
underwriters and the Company in their sole discretion determine
will not jeopardize the success of the offering. If
the
underwriters determine that less than all of the Registrable
Securities requested to be registered can be included in such
offering, then the Registrable Securities that are included in such
offering shall be allocated among the selling Holders in proportion
(as nearly as practicable) to the number of Registrable Securities
owned by each selling Holder or in such other proportions as shall
mutually be agreed to by all such selling Holders. To facilitate
the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares.
Notwithstanding the foregoing, in no event shall (i) the number of
Registrable Securities included in the offering be reduced unless
all other securities (expressly excluding securities to be sold by
the Company) are proportionally reduced, or (ii) the number of
Registrable Securities included in the offering be reduced below
fifty percent (50%) of the total number of securities included in
such offering, unless such offering is the IPO, in which case the
selling Holders may be excluded in full if the underwriters make
the determination described above and no other stockholder’s
securities are included in such offering. For purposes of the
provision in this Section 2.3(b) concerning apportionment, for any
selling Holder that is a partnership, limited liability company, or
corporation, the partners, members, retired partners, retired
members, stockholders, and Affiliates of such Holder, or the
estates and Immediate Family Members of any such partners, retired
partners, members, and retired members and any trusts for the
benefit of any of the foregoing Persons, shall be deemed to be a
single “selling Holder,” and any pro rata reduction
with respect to such “selling Holder” shall be based
upon the aggregate number of Registrable Securities owned by all
Persons included in such “selling Holder,” as defined
in this sentence.
(c) For purposes of
Section 2.2, a registration shall not be counted as
“effected” if, as a result of an exercise of the
underwriter’s cutback provisions in Section 2.3(a), fewer
than twenty-five percent (25%) of the total number of Registrable
Securities that Holders have requested to be included in such
registration statement are actually included.
2.4 Obligations of the
Company. Whenever required under this Section 2 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 commercially reasonable 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 of up to one hundred twenty (120) days or,
if earlier, until the distribution contemplated in the registration
statement has been completed; provided, however, that such one
hundred twenty (120) day period shall be extended for a period of
time equal to the period the Holder refrains, at the request of an
underwriter of Common Stock (or other securities) of the Company,
from selling any securities included in such
registration;
(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 be necessary
to comply with the Securities Act in order to enable the
disposition of all securities covered by such registration
statement;
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(c) furnish to the
selling Holders such numbers of copies of a prospectus, including a
preliminary prospectus, as required by the Securities Act, and such
other documents as the Holders may reasonably request in order to
facilitate their disposition of their Registrable
Securities;
(d) use its
commercially reasonable 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 selling Holders; provided that the Company shall not be
required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the
Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act;
(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 underwriter(s) of such offering;
(f) use its
commercially reasonable efforts to cause all such Registrable
Securities covered by such registration statement to be listed on a
national securities exchange or trading system and each securities
exchange and trading system (if any) on which similar securities
issued by the Company are then listed;
(g) provide a transfer
agent and registrar for all Registrable Securities registered
pursuant to this Agreement and provide a CUSIP number for all such
Registrable Securities, in each case not later than the effective
date of such registration;
(h) promptly make
available for inspection by the selling Holders, any underwriter(s)
participating in any disposition pursuant to such registration
statement, and any attorney or accountant or other agent retained
by any such underwriter or selected by the selling Holders, all
financial and other records, pertinent corporate documents, and
properties of the Company, and cause the Company’s officers,
directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant, or agent, in each case, as necessary or
advisable to verify the accuracy of the information in such
registration statement and to conduct appropriate due diligence in
connection therewith;
(i) notify each selling
Holder, promptly after the Company receives notice thereof, of the
time when such registration statement has been declared effective
or a supplement to any prospectus forming a part of such
registration statement has been filed; and
(j) after such
registration statement becomes effective, notify each selling
Holder of any request by the SEC that the Company amend or
supplement such registration statement or prospectus.
In
addition, the Company shall ensure that, at all times after any
registration statement covering a public offering of securities of
the Company under the Securities Act shall have become effective,
its xxxxxxx xxxxxxx policy shall provide that the Company’s
directors may implement a trading program under Rule 10b5-1 of the
Exchange Act.
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2.5 Furnish
Information. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 2 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 is reasonably required
to effect the registration of such Holder’s Registrable
Securities.
2.6 Expenses of
Registration. All expenses (other than Selling Expenses) incurred
in connection with registrations, filings, or qualifications
pursuant to Section 2, including all registration, filing, and
qualification fees; printers’ and accounting fees; fees and
disbursements of counsel for the Company; and the reasonable fees
and disbursements, not to exceed $25,000, of one counsel for the
selling Holders (“Selling
Holder Counsel”), shall be borne and paid 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 2.1 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 selling
Holders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be included in the withdrawn
registration), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one registration
pursuant to Sections 2.2(a) or 2.2(b), as the case may be, in which case the
Holders shall not be required to pay any of such expenses and shall
not forfeit their right to one registration pursuant to Sections
2.2(a) or 2.2(b). All Selling Expenses relating to
Registrable Securities registered pursuant to this Section 2 shall
be borne and paid by the Holders pro rata on the basis of the
number of Registrable Securities registered on their
behalf.
2.7 Delay of
Registration. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any registration
pursuant to this Agreement as the result of any controversy that
might arise with respect to the interpretation or implementation of
this Section 2.
2.8 Indemnification. If
any Registrable Securities are included in a registration statement
under this Section 2:
(a) To the extent
permitted by law, the Company will indemnify and hold harmless each
selling Holder, and the partners, members, officers, directors, and
stockholders of each such Holder; legal counsel and accountants for
each such Holder; any underwriter (as defined in the Securities
Act) for each such Holder; and each Person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act
or the Exchange Act, against any Damages, and the Company will pay
to each such Holder, underwriter, controlling Person, or other
aforementioned Person any legal or other expenses reasonably
incurred thereby in connection with investigating or
defending any claim
or proceeding from which Damages may result, as such expenses are
incurred; provided,
however, that the indemnity agreement contained in this
Section 2.8(a) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is
effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable for
any Damages to the extent that they arise out of or are based upon
actions or omissions made in reliance upon and in conformity with
written information furnished by or on behalf of any such Holder,
underwriter, controlling Person, or other aforementioned Person
expressly for use in connection with such
registration.
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(b) To the extent
permitted by law, each selling Holder, severally and not jointly,
will indemnify and hold harmless the Company, and 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 Securities Act, legal counsel and accountants
for the Company, any underwriter (as defined in the Securities
Act), any other Holder selling securities in such registration
statement, and any controlling Person of any such underwriter or
other Holder, against any Damages, in each case only to the extent
that such Damages arise out of or are based upon actions or
omissions made in reliance upon and in conformity with written
information furnished by or on behalf of such selling Holder
expressly for use in connection with such registration; and each
such selling Holder will pay to the Company and each other
aforementioned Person any legal or other expenses reasonably
incurred thereby in connection with investigating or defending any
claim or proceeding from which Damages may result, as such expenses
are incurred; provided,
however, that the indemnity agreement contained in this
Section 2.8(b) shall not apply to
amounts paid in settlement of any such claim or proceeding if such
settlement is effected without the consent of the Holder, which
consent shall not be unreasonably withheld; and provided further that in no event shall
the aggregate amounts payable by any Holder by way of indemnity or
contribution under Sections 2.8(b) and
2.8(d) exceed the proceeds from the
offering received by such Holder (net of any Selling Expenses paid
by such Holder), except in the case of fraud or willful misconduct
by such Holder.
(c) Promptly after
receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action
(including any governmental action) for which a party may be
entitled to indemnification hereunder, such indemnified party will,
if a claim in respect thereof is to be made against any
indemnifying party under this Section 2.8, give the indemnifying party notice of the
commencement thereof. The indemnifying party shall have the right
to participate in such action and, to the extent the indemnifying
party so desires, participate jointly with any other indemnifying
party to which notice has been given, and to assume the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an
indemnified party (together with all other indemnified parties that
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 action. The failure to give
notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying
party of any liability to the indemnified party under this Section
2.8, to the extent that
such
failure materially prejudices the indemnifying party’s
ability to defend such action. The failure to give 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
2.8.
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(d) To provide for just
and equitable contribution to joint liability under the Securities
Act in any case in which either: (i) any party otherwise entitled
to indemnification hereunder makes a claim for indemnification
pursuant to this Section 2.8 but it is
judicially determined (by the entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case, notwithstanding
the fact that this Section 2.8 provides
for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of any party hereto for
which indemnification is provided under this Section 2.8, then, and in each such case, such parties
will contribute to the aggregate losses, claims, damages,
liabilities, or expenses to which they may be subject (after
contribution from others) in such proportion as is appropriate to
reflect the relative fault of each of the indemnifying party and
the indemnified party in connection with the statements, omissions,
or other actions that resulted in such loss, claim, damage,
liability, or expense, as well as to reflect any other relevant
equitable considerations. 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 allegedly untrue
statement of a material fact, or the omission or alleged omission
of 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;
provided, however, that, in
any such case (x) no Holder will be required to contribute any
amount in excess of the public offering price of all such
Registrable Securities offered and sold by such Holder pursuant to
such registration statement, and
(y) no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation; and
provided further that in no
event shall a Holder’s liability pursuant to this Section 2.8(d), when combined with the amounts paid
or payable by such Holder pursuant to Section 2.8(b), exceed the proceeds from the offering
received by such Holder (net of any Selling Expenses paid by such
Holder), except in the case of willful misconduct or fraud by such
Holder.
(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.
(f) Unless otherwise
superseded by an underwriting agreement entered into in connection
with the underwritten public offering, the obligations of the
Company and Holders under this Section
2.8 shall survive the completion of any offering of Registrable
Securities in a registration under this Section 2, and otherwise
shall survive the termination of this Agreement.
2.9 Reports Under
Exchange Act. With a view to making available to the Holders the
benefits of SEC Rule 144 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
shall:
(a) make and keep
available adequate current public information, as those terms are
understood and defined in SEC Rule 144, at all times after the
effective date of the registration statement filed by the Company
for the IPO;
-12-
(b) use 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 and the Exchange Act (at any time after the Company
has become subject to such reporting requirements);
and
(c) furnish to any
Holder, so long as the Holder owns any Registrable Securities,
forthwith upon request to the extent accurate, 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 registration statement filed by the Company
for the IPO), the Securities Act, and the Exchange Act (at any time
after the Company 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
the Company so qualifies); and (ii) such other information as may
be reasonably requested in availing any Holder of any rule or
regulation of the SEC that permits the selling of any such
securities without registration (at any time after the Company has
become subject to the reporting requirements under the Exchange
Act) or pursuant to Form S-3 (at any time after the Company so
qualifies to use such form).
2.10 “Market Stand-off”
Agreement. Each Holder hereby agrees that it will not, without the
prior written consent of the managing underwriter, during the
period commencing on the date of the final prospectus relating to
the registration by the Company of shares of its Common Stock or
any other equity securities under the Securities Act on a
registration statement on Form S-1 or Form S-3, and ending on the
date specified by the Company and the managing underwriter (such
period not to exceed one hundred eighty (180) days in the case of
the IPO, or such other period as may be requested by the Company or
an underwriter to accommodate regulatory restrictions on (1) the
publication or other distribution of research reports, and (2)
analyst recommendations and opinions, including, but not limited
to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE
Rule 472(f)(4), or any successor provisions or amendments thereto),
(i) lend; offer; pledge; sell; contract to sell; sell any option or
contract to purchase; purchase any option or contract to sell;
grant any option, right, or warrant to purchase; or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable (directly or indirectly) for Common Stock held
immediately before the effective date of the registration statement
for such offering or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of such securities, whether any such
transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or other securities, in cash, or
otherwise. The foregoing provisions of this Section 2.100 shall apply only to the IPO, shall
not apply to the sale of any shares to an underwriter
pursuant to an
underwriting agreement, or the transfer of any shares to any trust
for the direct or indirect benefit of the Holder or the immediate
family of the Holder, provided that the trustee of the trust agrees
to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a
disposition for value. The underwriters in connection with such
registration are intended third-party beneficiaries of this
Section 2.10 and shall have the right,
power and authority to enforce the provisions hereof as though they
were a party hereto. Each Holder further agrees to execute such
agreements as may be reasonably requested by the underwriters in
connection with such registration that are consistent with this
Section 2.10 or that are necessary to
give further effect thereto, and the Company shall cause all future
stockholders of the Company to execute a document containing a
market stand-off agreement comparable to this Section 2.10. Any
discretionary waiver or termination of the restrictions of any or
all of such agreements by the Company or the underwriters shall
apply pro rata to all Holders subject to such agreements, based on
the number of shares subject to such agreements.
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2.11 Restrictions
on Transfer.
(a) The Registrable
Securities shall not be sold, pledged, or otherwise transferred
other than in conformity with the Securities Act, and the Company
shall not recognize and shall issue stop-transfer instructions to
its transfer agent (when a transfer agent has been engaged by the
Company) with respect to any such sale, pledge, or transfer, except
upon the conditions specified in this Agreement, which conditions
are intended to ensure compliance with the provisions of the
Securities Act. A transferring Holder will cause any proposed
purchaser, pledgee, or transferee of the Registrable Securities
held by such Holder to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this
Agreement.
(b) Each certificate,
instrument, or book entry representing (i) the Registrable
Securities, and (ii) any other securities issued in respect of the
securities referenced in clause (i), upon any Recapitalization,
merger, consolidation, or similar event, shall (unless otherwise
permitted by the provisions of Section 2.11(c)) be notated with a
legend substantially in the following form:
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE
SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE
WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
The
Holders consent to the Company making a notation in its records and
giving instructions to any transfer agent of the Restricted
Securities in order to implement the restrictions on transfer set
forth in this Section 2.11.
-14-
(c) The holder of such
Restricted Securities, by acceptance of ownership thereof, agrees
to comply in all respects with the provisions of this Section 2.
Before any proposed sale, pledge, or transfer of any Restricted
Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transaction, the
Holder thereof shall give notice to the Company of such
Holder’s intention to effect such sale, pledge, or transfer.
Each such notice shall describe the manner and circumstances of the
proposed sale, pledge, or transfer in sufficient detail and, if
reasonably requested by the Company, shall be accompanied at such
Holder’s expense by either (i) a written opinion of legal
counsel who shall, and whose legal opinion shall, be reasonably
satisfactory to the Company, addressed to the Company, to the
effect that the proposed transaction may be effected without
registration under the Securities Act; (ii) a “no
action” letter from the SEC to the effect that the proposed
sale, pledge, or transfer of such Restricted Securities without
registration will not result in a recommendation by the staff of
the SEC that action be taken with respect thereto; or (iii) any
other evidence reasonably satisfactory to counsel to the Company to
the effect that the proposed sale, pledge, or transfer of the
Restricted Securities may be effected without registration under
the Securities Act, whereupon the Holder of such Restricted
Securities shall be entitled to sell, pledge, or transfer such
Restricted Securities in accordance with the terms of the notice
given by the Holder to the Company. The Company will not require
such a legal opinion or “no action” letter or detail
with respect to such transfer other than the number of shares and
the name of the transferee (x) in any transaction in compliance
with SEC Rule 144; or (y) in any transaction in which such Holder
distributes Restricted Securities to an Affiliate of such Holder
for no consideration; provided that each transferee agrees in
writing to be subject to the terms of this Section 2.11. Each
certificate, instrument, or book entry representing the Restricted
Securities transferred as above provided shall be notated with,
except if such transfer is made pursuant to SEC Rule 144, the
appropriate restrictive legend set forth in Section 2.11(b), except that such certificate instrument, or
book entry shall not be notated with such restrictive legend if, in
the opinion of counsel for such Holder and the Company, such legend
is not required in order to establish compliance with any
provisions of the Securities Act.
2.12 Termination of Registration
Rights. The right of any Holder to request registration or
inclusion of Registrable Securities in any registration pursuant to
Section 2 shall terminate upon the earliest to occur
of:
(a) such time as Rule
144 or another similar exemption under the Securities Act is
available for the sale of all of such Holder’s shares without
limitation during a three-month period without registration;
and
(b) the fifth
anniversary of the IPO.
3.
Information
Rights.
-15-
(a) as soon as
practicable, but in any event within one hundred twenty
(120)
days after the end of each fiscal year of the Company (i) a balance
sheet as of the end of such year, (ii) statements of income and of
cash flows for such year, and (iii) a statement of
stockholders’ equity as of the end of such year, all prepared
in accordance with GAAP and audited and certified by independent
public accountants of nationally recognized standing selected by
the Company;
(b) as soon as
practicable, but in any event within sixty (60) days after the end
of each of the first three (3) quarters of each fiscal year of the
Company, unaudited statements of income and cash flows for such
fiscal quarter, and an unaudited balance sheet, all prepared in
accordance with GAAP (except that such financial statements may (i)
be subject to normal year-end audit adjustments; and (ii) not
contain all notes thereto that may be required in accordance with
GAAP);
(c) as soon as
practicable, but in any event before the end of each fiscal year, a
budget and business plan for the next fiscal year (collectively,
the “Budget”),
prepared on a monthly basis, including balance sheets, income
statements, and statements of cash flow for such months and,
promptly after prepared, any other budgets or revised budgets
prepared by the Company; and
(d) such other
information relating to the financial condition, business,
prospects, or corporate affairs of the Company as any Investor may
from time to time reasonably request; provided, however, that the Company shall not be
obligated under this Section 3.1 to
provide information that the Company reasonably determines in good
faith (i) to be a trade secret or confidential information (unless
covered by an enforceable confidentiality agreement, in a form
reasonably acceptable to the Company) or (ii) would, if disclosed,
adversely affect the attorney-client privilege between the Company
and its counsel.
If, for
any period, the Company has any subsidiary whose accounts are
consolidated with those of the Company, then in respect of such
period the financial statements delivered pursuant to the foregoing
sections shall be the consolidated and consolidating financial
statements of the Company and all such consolidated
subsidiaries.
Notwithstanding
anything else in this Section 3.1 to the
contrary, the Company may cease providing the information set forth
in this Section 3.1 during the period
starting with the date one hundred twenty (120) days before the
Company’s good-faith estimate of the date of filing of a
registration statement if it reasonably concludes it must do so to
comply with the SEC rules applicable to such registration statement
and related offering; provided that the Company’s
covenants under this Section 3.1 shall be reinstated at
such time as the Company is no longer actively employing its
commercially reasonable efforts to cause such registration
statement to become effective.
3.2 Inspection. The
Company shall permit each Investor, at such Investor’s
expense, to visit and inspect the Company’s properties;
examine its books of account and records; and discuss the
Company’s affairs, finances, and accounts with its officers,
during normal business hours of the Company as may be reasonably
requested by the Investor upon at least five (5) days’
notice; provided, however,
that the Company shall not be obligated pursuant to this
Section 3.2 to provide access to
any information that it reasonably and in good faith determines (a)
to be a trade secret or confidential information (unless covered by
an enforceable confidentiality agreement, in form reasonably
acceptable to the Company) (b) would, if disclosed, adversely
affect the attorney- client privilege between the Company and its
counsel.
-16-
3.3 Termination of Information Rights and
Observer Right. The covenants set forth in Sections 3.1, and 3.2 shall terminate and be
of no further force or effect immediately before the consummation
of an IPO.
3.4 Confidentiality.
Each Investor agrees that such Investor will keep confidential and
will not disclose, divulge, or use for any purpose (other than to
monitor its investment in the Company) any confidential information
obtained from the Company pursuant to the terms of this Agreement
(including notice of the Company’s intention to file a
registration statement), unless such confidential information (a)
is known or becomes known to the public in general (other than as a
result of a breach of this Section 3.44 by such Investor), (b) is or
has been independently developed or conceived by the Investor
without use of the Company’s confidential information as
evidenced by written documentation, or (c) is or has been made
known or disclosed to the Investor by a third party without a
breach of any obligation of confidentiality such third party may
have to the Company; provided,
however, that an Investor may disclose confidential
information (i) to its attorneys, accountants, consultants, and
other professionals to the extent necessary to obtain their
services in connection with monitoring its investment in the
Company; (ii) to any prospective purchaser of any Registrable
Securities from such Investor, if such prospective purchaser agrees
to be bound by the provisions of this Section 3.44; (iii) to any Affiliate,
partner, member, stockholder, or wholly owned subsidiary of such
Investor in the ordinary course of business, provided that such Investor informs
such Person that such information is confidential and directs such
Person to maintain the confidentiality of such information; or (iv)
as may otherwise be required by law, provided that the Investor promptly
notifies the Company of such disclosure and takes reasonable steps
to minimize the extent of any such required
disclosure.
4.
Rights Related to
Future Stock Issuances.
4.1 and applicable
securities laws, if, after the date of this Agreement, the Company
proposes to offer or sell any New Securities, the Company shall
first offer such New Securities to each Investor. Each Investor
shall be entitled to apportion the pro rata purchase right hereby
granted to it among itself and its Affiliates in such proportions
as it deems appropriate.
(a) The Company shall
give notice (the “Offer
Notice”) to each Investor, stating (i) its bona fide
intention to offer such New Securities, (ii) the number of such New
Securities to be offered, and (iii) the price and terms, if any,
upon which it proposes to offer such New Securities.
-17-
(b) By notification to
the Company within twenty (20) days after the Offer Notice is
given, each Investor may, in its sole discretion, elect to purchase
or otherwise acquire, at the price and on the terms specified in
the Offer Notice, up to that portion of such New Securities which
equals the proportion that the number of shares of Common Stock
then held by such Investor (including all shares of Common Stock
then issuable (directly or indirectly) upon conversion and/or
exercise, as applicable, of any and all Derivative Securities then
held by such Investor) bears to the total number of shares of
Common Stock of the Company then outstanding (assuming full
conversion and/or exercise, as applicable, of all Derivative
Securities). The closing of any sale pursuant to this Section
4.1(b) shall occur at the same closing covering the initial sale of
New Securities pursuant to Section 4.1(c).
(c) If all New
Securities referred to in the Offer Notice are not elected to be
purchased or acquired as provided in Section 4.1(b), the Company may, during
the ninety (90) day period following the expiration of the period
provided in Section
4.1(b), offer and sell the
remaining unsubscribed portion of such New Securities to any
Person(s) at a price not less than, and upon terms no more
favorable to the offeree than, those specified in the Offer Notice.
If the Company does not enter into an agreement for the sale of the
New Securities within such period, or if such agreement is not
consummated within thirty (30) days of the execution thereof, the
right provided hereunder shall be deemed to be revived and such New
Securities shall not be offered unless first reoffered to the
Investors in accordance with this Section 4.1.
(d) The pro rata
purchase rights in this Section 4.1 shall not be applicable
to Exempted Securities.
4.2 Termination. The
covenants set forth in Section 4.1, shall terminate and be
of no further force or effect immediately before the consummation
of the IPO.
5.1 Employee
Agreements. The Company will cause each person now or hereafter
employed by it or by any subsidiary (or engaged by the Company or
any subsidiary as a consultant/independent contractor) with access
to confidential information and/or trade secrets to enter into a
nondisclosure and proprietary rights assignment agreement. In
addition, the Company shall not amend, modify, terminate, waive, or
otherwise alter, in whole or in part, any of the above- referenced
agreements or any restricted stock agreement between the Company
and any employee, without the majority consent of the
Board.
5.2 Employee Stock.
Unless otherwise approved by a majority of the Board, all future
employees and consultants of the Company who purchase, receive
options to purchase, or receive awards of shares of the
Company’s capital stock after the date hereof shall be
required to execute restricted
stock or option agreements, as applicable, providing for vesting of
shares over a four (4) year period, with vesting in equal monthly
installments over the forty-eight (48) months.
-18-
5.3 Qualified Small
Business Stock. The Company shall use commercially reasonable
efforts to cause the shares of Common Stock issued upon conversion
of the Notes and exercise of the Warrants pursuant to the Purchase
Agreement to constitute “qualified small business
stock” as defined in Section 1202(c) of the Internal Revenue
Code (the “Code”);
provided, however, that
such requirement shall not be applicable if the Board determines,
in its good-faith business judgment, that such qualification is
inconsistent with the best interests of the Company. The Company
shall submit to its stockholders (including the Investors) and to
the Internal Revenue Service any reports that may be required under
Section 1202(d)(1)(C) of the Code and the regulations promulgated
thereunder. In addition, within twenty (20) business days after any
Investor’s written request therefor, the Company shall, at
its option, either (i) deliver to such Investor a written statement
indicating whether (and what portion of) such Investor’s
interest in the Company constitutes “qualified small business
stock” as defined in Section 1202(c) of the Code or (ii)
deliver to such Investor such factual information in the
Company’s possession as is reasonably necessary to enable
such Investor to determine whether (and what portion of) such
Investor’s interest in the Company constitutes
“qualified small business stock” as defined in Section
1202(c) of the Code.
5.4 Board Matters. The
Company shall reimburse its directors for all reasonable
out-of-pocket travel expenses incurred (consistent with the
Company’s travel policy) in connection with attending
meetings of the Board or any committees thereof and in connection
with attending any other events (e.g. meetings and trade shows) required
by or at the request of the Company.
5.5 Successor
Indemnification. If the Company or any of its successors or
assignees consolidates with or merges into any other Person and is
not the continuing or surviving corporation or entity of such
consolidation or merger, then to the extent necessary, proper
provision shall be made so that the successors and assignees of the
Company assume the obligations of the Company with respect to
indemnification of members of the Board as in effect immediately
before such transaction, whether such obligations are contained in
the Company’s Bylaws, the Restated Certificate, or elsewhere,
as the case may be
5.6 Termination of
Covenants. The covenants set forth in this Section 5, except for Section 5.5, shall terminate
and be of no further force or effect immediately before the
consummation of a Qualified Public Offering.
-19-
6.
Miscellaneous.
6.1 Successors and
Assigns. The rights under this Agreement may be assigned (but only
with all related obligations) by a Holder to a transferee of
Registrable Securities that (i) is an Affiliate of a Holder, (ii)
is a Holder’s Immediate Family Member or trust for the
benefit of an individual Holder or one or more of such
Holder’s Immediate Family Members, or (iii) after such
transfer, holds at least 100,000 shares of Registrable Securities
(subject to appropriate adjustment for Recapitalizations);
provided, however, that (x)
the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such
transferee and the Registrable Securities with respect to which
such rights are being transferred; and (y) such transferee agrees
in a written instrument delivered to the Company to be bound by and
subject to the terms and conditions of this Agreement, including
the provisions of Section 2.10. For the
purposes of determining the number of shares of Registrable
Securities held by a transferee, the holdings of a transferee (1)
that is an Affiliate or stockholder of a Holder; (2) who is a
Holder’s Immediate Family Member; or (3) that is a trust for
the benefit of an individual Holder or such Holder’s
Immediate Family Member shall be aggregated together and with those
of the transferring Holder; provided further that all transferees
who would not qualify individually for assignment of rights shall
have a single attorney- in-fact for the purpose of exercising any
rights, receiving notices, or taking any action under this
Agreement. The terms and conditions of this Agreement inure to the
benefit of and are binding upon the respective successors and
permitted assignees of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and permitted
assignees any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided
herein.
6.2 Governing Law. This
Agreement shall be governed by and construed under the internal
laws of the State of Delaware, irrespective of conflict of law
principles.
6.3 Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Counterparts may be
delivered via facsimile, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of
2000, e.g.,
xxx.xxxxxxxx.xxx) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
6.4 Titles and
Subtitles. The titles and subtitles used in this Agreement are for
convenience only and are not to be considered in construing or
interpreting this Agreement.
6.5 Notices. All
notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given
upon the earlier of actual receipt or (i) personal delivery to the
party to be notified; (ii) when sent, if sent by electronic mail or
facsimile during the recipient’s normal business hours, and
if not sent during normal business hours, then on the
recipient’s next business day; (iii) five (5) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) one (1) business day after the
business day of deposit with a nationally recognized overnight
courier, freight prepaid, specifying next-day delivery, with
written verification of receipt. All communications shall be sent
to the respective parties at their addresses as set forth on
Schedule 1 hereto, or to the principal office of the Company and to
the attention of the Chief Executive Officer, in the case of the
Company, or to such email address, facsimile number, or address as
subsequently modified by written notice given in accordance with
this Section
6.5. If notice is given to
the Company, a copy shall also be sent to Xxx Xxxx,
President & CEO, Super
League Gaming, Inc., 0000 Xxxxxxxx Xxx., Xxxxx Xxxxxx, XX 00000,
xxx.xxxx@xxxxxxxxxxx.xxx,.
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6.6 Amendments and
Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company and the
holders of at least a majority of the Registrable Securities then
outstanding; Notwithstanding the foregoing, this Agreement may not
be amended or terminated and the observance of any term hereof may
not be waived with respect to any Investor without the written
consent of such Investor, unless such amendment, termination, or
waiver applies to all Investors in the same fashion. The Company
shall give prompt notice of any amendment or termination hereof or
waiver hereunder to any party hereto that did not consent in
writing to such amendment, termination, or waiver. Any amendment,
termination, or waiver effected in accordance with this
Section
6.6 shall be
binding on all parties hereto, regardless of whether any such party
has consented thereto. No waivers of or exceptions to any term,
condition, or provision of this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or
continuing waiver of any such term, condition, or
provision.
6.7 Severability. In
case any one or more of the provisions contained in this Agreement
is for any reason held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall
not affect any other provision of this Agreement, and such invalid,
illegal, or unenforceable provision shall be reformed and construed
so that it will be valid, legal, and enforceable to the maximum
extent permitted by law.
6.8 Aggregation of
Stock. All shares of Registrable Securities held or acquired by
Affiliates shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement and
such Affiliated persons may apportion such rights as among
themselves in any manner they deem appropriate.
6.9 Entire Agreement.
This Agreement constitutes the full and entire understanding and
agreement among the parties with respect to the subject matter
hereof, and any other written or oral agreement relating to the
subject matter hereof existing between the parties is expressly
canceled.
6.10 Dispute
Resolution. The parties (a) hereby irrevocably and unconditionally
submit to the jurisdiction of the federal and state courts located
in Los Angeles County, California for the purpose of any suit,
action or other proceeding arising out of or based upon this
Agreement, (b) agree not to commence any suit, action or other
proceeding arising out of or based upon this Agreement except in
the federal and state courts located in Los Angeles County,
California, and (c) hereby waive, and agree not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or
proceeding, 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 the suit, action or
proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper or that this Agreement
or the subject matter hereof may not be enforced in or by such
court.
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WAIVER
OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE
SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY
DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL
NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER
WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
6.11 Delays
or Omissions. No delay or omission to exercise any right, power, or
remedy accruing to any party under this Agreement, upon any breach
or default of any other party under this Agreement, shall impair
any such right, power, or remedy of such non-breaching or non-
defaulting party, nor shall it be construed to be a waiver of or
acquiescence to any such breach or default, or to any similar
breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. All remedies, whether
under this Agreement or by law or otherwise afforded to any party,
shall be cumulative and not alternative
6.12 Acknowledgment.
The Company acknowledges that certain of the Investors are in the
business of venture capital investing and therefore review the
business plans and related proprietary information of many
enterprises, including enterprises which may have products or
services which compete directly or indirectly with those of the
Company. Nothing in this Agreement shall preclude or in any way
restrict the Investors from investing or participating in any
particular enterprise whether or not such enterprise has products
or services that compete with those of the Company.
[Signature Pages Follow]
-22-
IN
WITNESS WHEREOF, the parties have executed this Investors’
Rights Agreement as of the date first written above.
COMPANY:
By: Xxx
Xxxx
Chief
Executive Officer & President
-23-
IN
WITNESS WHEREOF, the parties have executed this Investors’
Rights Agreement as of the date first written above.
INVESTOR:
By:
Name:
Title:
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