EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of __________________________, 1999 (the "Effective Date") by and
between XXXXXXX.XXX, INC., a Delaware corporation (the "Company"), and HYPERFEED
TECHNOLOGIES, INC., a Delaware corporation.
R E C I T A L S
WHEREAS, the Company and Holder (as defined below) have entered into that
certain Contribution and Separation Agreement (the "Separation Agreement") dated
as of the date hereof, which provides, among other things, that Holder shall
contribute certain assets to the Company in exchange for (i) all of the capital
stock of the Company and (ii) the assumption of certain liabilities of Holder;
WHEREAS, pursuant to a Pre-Incorporation Subscription Agreement dated as of
March 18, 1999, Holder received 1,000 shares of the Common Stock of the Company,
par value $0.01 per share;
WHEREAS, as a condition to Holder agreeing to enter into the Separation
Agreement, the Company has agreed to xxxxx Xxxxxx certain registration rights
with respect to the Registrable Shares (as defined below);
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and Holder hereby, intending to be legally bound by
the terms hereof, agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) 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 Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of such registration
statement or document;
(b) The term "Registrable Securities" means the shares of Common
Stock received by Holder pursuant to the Separation Agreement; and
(c) The term "Holder" means HyperFeed Technologies, Inc., as the
original holder of the Registrable Securities and any transferee of the
Registrable Securities.
SECTION 2. COMPANY REGISTRATION. If (but without any obligation to
do so) the Company proposes at any time to register (including for this
purpose (i) a registration effected by the Company for Holders other than
Holder, and (ii) a registration of an initial public offering where Holders
other than Holder are registering securities) any of its stock or other
securities under the Act in connection with the public offering whether or
not for its own account of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, or 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), the
Company shall, at such time, promptly give Holder written notice of such
registration. Upon the written request of Holder given within twenty days
after mailing of such notice by the Company, the Company shall cause to be
registered under the Act all of the Registrable Securities that each such
Holder has requested to be registered.
SECTION 3. DEMAND REGISTRATION. In case the Company shall, at any
time after an initial public offering of the Company's securities, receive
from Holders holding 30% or more of the outstanding Registrable Securities a
written request (provided that while the Holders shall have an unlimited
number of demand registration rights, such rights may be exercised no more
than twice per year during any periods in which the Company is not permitted
to file registration statements on behalf of the Holders on Form S-3 or any
similar short-form registration statement or any successor or similar forms)
that the Company effect a registration and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned
by such Holder, the Company will promptly notify each other Holder (if any)
of such request and will:
(a) 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, in accordance with such plan of
distribution or method of sale as Holder notifies the Company, of all or such
portion of a Holder's Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
holder of registration rights joining in such request as are specified in a
written request given within 20 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 3: (1) if the Company has effected a registration of its securities
within the preceding 6 months (other than registration statements on Form S-3
(or any similar short-form registration statement) or any successor or similar
forms or any registration statement relating to equity securities issuable upon
exercise of employee stock options or in connection with any employee benefit or
similar plan of the Company or in connection with an acquisition by the Company
of another company); (2) if the Company shall furnish to Holder 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 Holders for such registration to be effected at such time
and setting forth the general reasons for such judgment, in which event the
Company shall have the right to defer the filing of the registration statement
for a period of not more than 60 days after receipt of the request of Holder
under this Section 3; PROVIDED, HOWEVER, that the Company shall not utilize this
right more than once in any twelve-month period; or (3) in any 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; and,
(b) subject to the foregoing, file a registration statement
covering the Registrable Securities and other securities so requested to be
registered promptly after receipt
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of the request or requests of Holder, and in any event within 30 days of
receipt of such request.
The Holders who hold a majority of the Registrable Securities requested to be
registered under this Section 3 may, at any time prior to the effective date of
the registration statement relating to such registration, revoke such request
(but not the registration statement), without liability (except as set forth in
Section 7 hereof), by providing a written notice to the Company revoking such
request.
The Company shall have the right to select the underwriters (if any) for any
registration pursuant to this Section 3, subject to the approval of such
selection by the Holders of a majority of the Registrable Securities requested
to be registered (which approval by such Holders shall not be unreasonably
withheld).
SECTION 4. OBLIGATIONS OF THE COMPANY. In the event that the Company
is to effect the registration of any Registrable Securities pursuant to
Section 2 or 3 hereof, the Company shall promptly:
(a) Prepare and file with the Commission 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 securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days, or
such shorter period as is required to dispose of all securities covered by such
registration statement; PROVIDED, that if after any registration statement
requested pursuant to Section 3 becomes effective (i) such registration
statement is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court solely due
to the actions or omissions to act of the Company and (ii) less than 50% of the
Registrable Securities included in such registration have been sold thereunder,
such registration statement shall be at the sole expense of the Company and
shall not be counted as a registration which may be requested pursuant to
Section 3.
(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
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to Holder such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by Holder.
(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 Holder, 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
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consent to service of process in any such states or jurisdictions or to agree
to any restrictions as to the conduct of its business in the ordinary course
thereof.
(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. Holder shall
also enter into and perform its obligations under such underwriting agreement.
(f) Notify Holder at any time when a prospectus relating to
Registrable Securities of Holder covered by such registration statement 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 under which they were
made and furnish to such Holder a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not contain an untrue statement of material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(g) Furnish, at the request of Holder, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to Holder and (ii) a
letter dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to Holder.
SECTION 5. AVAILABILITY OF RULE 144. Notwithstanding anything in the
Separation Agreement or this Statement of Registration Rights to the contrary,
the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to Section 2 or 3, if application of
Rule 144 would allow Holder requesting a registration under Section 2 or 3 to
dispose of the Registrable Securities for which a registration is demanded
within a single 90-day period.
SECTION 6. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that the selling Holder shall furnish to the Company such information regarding
itself as a Holder, the Registrable Securities held by Holder, and the intended
method of disposition of such securities as shall be required to effect the
registration of their Registrable Securities.
SECTION 7. EXPENSES. The Company shall bear and pay all expenses
(other than underwriting discounts and commissions) incurred in connection with
any registration, filing or qualification of Registrable Securities, including
(without limitation) all registration, filing, and
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qualification fees, legal (not to exceed one law firm for the Holders of all
Registrable Securities), printers and accounting fees relating thereto, and
the cost of any reasonable fees or disbursements of counsel for Holder (the
"Expenses"); provided that, in the event that the Company has previously
complied with a request by the Holders for a demand registration during any
periods in which the Company is not permitted to file registration statements
on behalf of the Holders on Form S-3 or any similar short-form registration
statement or any successor or similar forms ("Long-form Periods"), the
Holders requesting a demand registration shall bear and pay all Expenses for
subsequent demand registrations during any Long-form Periods. The Company
shall not be liable for registration expenses in connection with a
registration that shall not have become effective due to a revocation by the
Holders requesting such registration under this Section 3. In such event,
the obligation to pay the registration expenses in connection with such
revoked registration shall be due and payable by the Holders who initially
requested and revoked such registration, and such expenses shall be borne by
them in proportion with the number of shares of Registrable Securities
requested by them to be registered.
SECTION 8. UNDERWRITING REQUIREMENTS.
(a) In connection with any registrations in which Registrable
Securities have a right to be included pursuant to Section 2 hereof and which
involves an underwriting of securities being issued by the Company, the Company
shall not be required, under Section 2 hereof, to include any of Holder's
securities in such underwriting unless Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities, requested by
Holders to be included in such offering exceeds the amount of securities sold
other than by the Company that the underwriters reasonably believe 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 believe will not jeopardize the success of
the offering, the securities so included to be apportioned pro rata among the
selling Holder and other shareholders holding contractual registration rights
according to the total amount of securities entitled to be included herein owned
by each selling Holder or in such other proportions as shall mutually be agreed
to by Holder and each other selling Holder.
(b) If a requested registration pursuant to Section 3 involves
an underwritten offering and the total amount of securities (including
securities which the Company may request to be included) requested to be
included in such offering exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such securities
which the underwriters believe will not jeopardize the success of the offering,
the securities so included to be apportioned pro rata among the selling Holder
and, if securities remain unapportioned, such remaining securities to be sold by
the Company. If at lease 50% of the Registrable Securities requested to be
registered by the Holders are not included in such registration, then the
Holders may request that the Company effect an additional registration under the
Act of all or part of the Holders' Registrable Securities in accordance with the
provisions of Section 3, and the Company shall effect, and pay the registration
expenses in connection with, such additional registration requested pursuant to
this Section 8.
SECTION 9. INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement filed by the Company:
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(a) The Company will indemnify and holder harmless Holder, its
officers, directors, partners, and agents, any underwriter (as defined in the
Act) for Holder and each person, if any, who controls, is controlled by or is
under common control with any such Holder or underwriter within the meaning of
the Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"),
against any losses, claims, damages, expense, or liabilities (joint or several)
asserted by a third party to which they may become subject under the Act, the
1934 Act or other federal or state law, insofar as such losses, claims, damages,
expense, 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 of 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 reimburse Holder, any of its officers,
directors, partners, or agents, underwriter or controlling person for any legal
or other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability, or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 9(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 such Holder,
underwriter or controlling person.
(b) Holder will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company with the meaning of
the Act, any underwriter and any other shareholder selling securities in such
registration statement or any of its directors or officers or any person who
controls such shareholder, against any losses, claims, damages, expense, or
liabilities (joint or several) asserted by a third party to which the Company
or any such director, officer, controlling person, or underwriter or
controlling person, or other such shareholder or director, officer or
controlling person may become subject, under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, expense, 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 Holder expressly for use in connection with such registration;
and Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter or
controlling person, other shareholder, officer, director, or controlling
person, as incurred, in connection with investigating or defending any such
loss, claim, damage, liability, or action; PROVIDED, HOWEVER, that the
obligations of Holder hereunder shall be limited to an amount equal to the
net proceeds (equal to the offering price less expenses and underwriting
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commissions and discounts) to such Holder of Shares sold as contemplated
herein. Notwithstanding the foregoing, the indemnity agreement contained in
this Section 9(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 Holder, which consent shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party under this
Section 9 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 9, 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 counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party shall
have the right to retain its own 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, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 9, but the omission so to 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 9.
SECTION 10. REPORTS UNDER THE 1934 ACT. With a view to making available
to Holder the benefits of Rule 144 promulgated under the Act and any other rule
or regulation of the Commission that may at any time permit Holder to sell
securities of the Company to the public without registration the Company will
endeavor to:
(a) make and keep public information available, as those terms
are understood and defined in Commission Rule 144;
(b) take such action as is necessary to enable Holder to utilize
an abbreviated registration statement for the sale of its Registrable
Securities;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to Holder, so long as Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Commission Rule 144, the Act
and the 1934 Act, 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 Holder of any rule or regulation of the
Commission which permits the selling of any such securities without registration
or pursuant to such form.
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SECTION 11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by Holder to a permitted transferee or assignee of all of the
Registrable Securities, provided 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; and provided, further, that 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.
SECTION 12. GENERAL PROVISIONS.
(a) Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the U.S. mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
(i) if to the Company, at:
XXXxxxx.xxx, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
(ii) if to Holder, at:
HyperFeed Technologies, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
(iii) If to any other Holder, at such Holder's respective address
as set forth in the Company's share register.
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or five days
after when deposited in the mail in the manner set forth above.
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(b) Entire Agreement. This Agreement constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
(c) Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company, and any Holder (and /or any of their permitted
successors or assigns) affected by such amendment or waiver. In the event the
rights of a Holder are sought to be waived, then the Holders of a majority of
the Registrable Securities owned by such Holders may waive such rights on behalf
of all of such other Holders.
(d) Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the laws of the State of Delaware,
excluding that body of law relating to conflict of laws.
(e) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
(f) Third Parties. Except as expressly provided herein, nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights or
remedies under or by reason of this Agreement.
(g) Successors And Assigns. The provisions of this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and
permitted assigns of the parties hereto.
(h) Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
XXXXXXX.XXX, INC., HYPERFEED TECHNOLOGIES, INC.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
By: ____________________________ By: ________________________________
Xxxxxxx X. Xxxxxxxxx, Xxxx Xxxxx,
its President its Chief Financial Officer
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