EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is dated as of
the 1st day of October, 1999, by and between INFRASTRUCTURE DEFENSE, INC., a
Delaware corporation (the "Company"), and HOMECOM COMMUNICATIONS, INC., a
Delaware corporation and its successors and assigns ("HomeCom").
WHEREAS, pursuant to the terms of that certain Asset Purchase Agreement
of even date herewith by and between the Company and HomeCom (the "Asset
Purchase Agreement"), HomeCom is selling to the Company all of the business and
assets of HomeCom's internet security division;
WHEREAS, pursuant to the Asset Purchase Agreement, HomeCom will receive
Sixty-Five Thousand Eight Hundred Fifty-Four (65,854) shares of the Company's
common stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, in order to induce HomeCom to enter into the Asset Purchase
Agreement, the Company desires to grant piggy-back registration rights to
HomeCom for the shares of Common Stock issuable upon the closing of the Asset
Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for good and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
HomeCom agree as follows:
1. GRANT OF PIGGY BACK REGISTRATION RIGHTS. Following (but not
including) the first offering of Common Stock by the Company, if the Company
proposes to register any of its Common Stock (a "Registered Offering"), either
for its own account or the account of any other holder or holders of equity
securities of the Company (other than registrations relating solely to employee
benefit plans, dividend reimbursement plans, Rule 145 transactions or any
registration of Form S-8 or Form S-4), the Company will provide HomeCom with
written notice thereof not less than thirty (30) days prior to the filing date
of such registration statement (the "Company Notice") and, subject to the other
terms and conditions set forth in this Agreement, include in such registration
and any underwriting involved therein, all Common Stock (referred to in this
Agreement as the "Registrable Securities") specified in a written request or
requests made by HomeCom to the Company within fifteen (15) days after receipt
of the Company Notice.
2. BLUE SKY REGISTRATION. The Company will take all necessary action
which may be required in qualifying or registering the Shares, included in a
registration statement for offering and sale under the securities or blue sky
laws of such states as are reasonably requested by the Placement Agent or the
Holder, provided that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any such jurisdiction.
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3. UNDERWRITER'S CUTBACK. If the registration of Registrable
Securities is to be underwritten and, in the good faith judgment of the managing
underwriter, the inclusion of all the Registrable Securities requested to be
registered hereunder would interfere with the successful marketing of the
securities to be registered in such underwritten registration, the number of
shares of Registrable Securities to be included shall be reduced to such smaller
number with the participation in such offering to be pro rata among HomeCom and
any other shareholder having the right to have securities registered in such
registration, based upon the number of securities properly requested to be
included in such registration by each such shareholder and HomeCom. Any shares
that are thereby excluded from the Registered Offering shall be withheld from
the market by HomeCom for a period (not to exceed ninety (90) days prior to the
effective date of the registration statement filed in connection therewith and
one hundred eighty (180) days thereafter) that the managing underwriter
reasonably determines is necessary in order to effect the Registered Offering.
4. TERMINATION OR WITHDRAWL OF REGISTRATION. The Company shall have
the right to terminate or withdraw any Registered Offering prior to the
effectiveness of such Registered Offering, whether or not HomeCom has elected to
include any Registrable Securities in such registration.
5. LOCK-UP. The Company shall have the right exercisable on one or
more occasions, in addition to its rights set forth in this Agreement, to
require upon written notice to HomeCom that HomeCom not sell any Shares during
the period specified in the notice, provided that such periods do not exceed one
hundred twenty (120) days in any calendar year, if the Company determines, in
its good faith judgment, that such offering or sale would interfere with any
material financing, acquisition, disposition, corporate reorganization or other
material transaction involving the Company or any of its subsidiaries.
6. EXPENSES. The cost of the registration of the Registrable
Securities will be at the Company's expense (or at the expense of the initiating
holder or holders, as the case may be), except for HomeCom's attorneys' fees and
underwriting discounts and commissions, which shall be borne by HomeCom.
7. UNDERWRITING AGREEMENT GOVERNS. In the event the terms of this
Agreement conflict with the terms of any underwriting agreement recommended or
required by the underwriter in connection with any underwritten Registered
Offering hereunder, the terms of such underwriting agreement shall control but
shall not materially impair or reduce HomeCom's rights as granted in this
Agreement.
8. INFORMATION. If HomeCom's Registrable Securities are to be included
in any Registration Statement, HomeCom shall furnish to the Company such
information as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
9. MANAGING UNDERWRITER. The managing underwriter or underwriters of
an underwritten public offering covered by these piggy-back registration rights
shall be selected by the Company (or the initiating holder or holders, as the
case may be).
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10. NON-ASSIGNMENT. The registration rights granted under this
Agreement are non-assignable, and shall become null and void with respect to any
Registrable Securities transferred other than pursuant to a then-effective
registration statement, upon such transfer.
11. TERMINATION OF REGISTRATION RIGHTS. The registration rights
granted under this Agreement shall expire on the date on which such Registrable
Securities could be sold pursuant to an exemption from registration including,
without limitation, Rule 144, promulgated under the Securities Act, as Rule 144
may be subsequently amended, modified, or supplemented
12. REGISTRATION INDEMNIFICATION
(a) INDEMNIFICATION BY HOMECOM. HomeCom agrees to indemnify
the Company, each of its directors and officers, each underwriter, if any, of
the Registrable Securities, each person or entity who controls the Company or
such underwriter within the meaning of Section 15 of the Securities Act, and
each of their respective officers and directors, against all claims, costs, fees
(including reasonable attorneys' fees), losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in a registration
statement covering any Registrable Securities, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, and its directors,
officers, representatives, underwriters and control persons for any legal or any
other expenses reasonably incurred, as such expenses are incurred, in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in reliance upon and in conformity with written information furnished to
the Company by HomeCom or HomeCom's representative or agent for inclusion in
such registration statement.
(b) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify HomeCom and each person, if any, who controls HomeCom within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), against all claims,
costs, fees (including reasonable attorneys' fees), losses, damages, expenses
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) and liabilities (or actions in respect
thereof) to which any of them may become subject under the Securities Act, the
Exchange Act or any other statute, common law or otherwise, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, post-effective amendment or
amendments, offering circular or other document executed by the Company or based
upon written information furnished by the Company filed in any jurisdiction in
order to qualify the securities under the securities laws thereof or filed with
the Commission or any state securities commission or agency, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements contained therein not misleading, unless such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by HomeCom for use in such registration
statement, any amendment or supplement thereto or any application, as the case
may be
(c) INDEMNIFICATION PROCEDURE. Each party entitled to
indemnification under this Section (for the purposes of this Section, the
"Indemnified Party") shall give notice to the party required to
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provide indemnification (for the purposes of this Section, the "Indemnifying
Party") after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not be unreasonably withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's ability
to defend such action, and provided further that the Indemnifying Party shall
not assume the defense for matters as to which there is a conflict of interest
or separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation
(d) CONTRIBUTION. If the indemnification provided for in this
Agreement is unavailable, then each Indemnifying Party shall contribute to the
amount paid or payable by such Indemnifying Party as a result of such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and HomeCom on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities, or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or HomeCom, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and whether a party breached a representation or warranty
or covenant or agreement contained in this Agreement. The Company and HomeCom
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to above shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such claim.
Notwithstanding the provisions of this paragraph, HomeCom shall not be required
to contribute any amount in excess to an amount equal to the consideration
represented by the Common Stock in the Asset Purchase Agreement, except in cases
of HomeCom's willful or intentional misconduct. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
13. MODIFICATIONS AND AMENDMENTS. The terms and provisions of this
Agreement may not be modified or amended except with the written consent of (a)
the Company and (b) the holders of a majority of the Shares outstanding. None of
the terms and provisions of this Agreement may be waived except in writing by
the person so waiving.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law
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provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any other jurisdiction other
than the State of Delaware.
15. NOTICE. All notices and other communications required or permitted
to be given in respect of this Agreement shall be sent by personal delivery,
nationally recognized overnight courier, facsimile or certified or registered
mail, to the following parties at the following addresses, or, in each case, at
such other address or addresses as any party shall hereafter specify by written
notice to the others:
(i) If to the Company, to:
Infrastructure Defense, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
McGuire, Woods, Battle & Xxxxxx LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Clive X. X. X'Xxxxx, Esquire
Facsimile: (000) 000-0000
(ii) If to HomeCom, to:
HomeCom Communications, Inc.
Xxxxxxxx 00, Xxxxx 000
3535 Piedmont Road
Atlanta, Georgia
Attention: Xxxxxx Xxx
Facsimile: (000) 000-0000
With a copy to:
Sims, Moss, Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxx
Facsimile: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to
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the facsimile number as provided for in this Section, be deemed given upon
receipt, (iii) if delivered by mail in the manner described above to the address
as provided in this Section, be deemed given on the earlier of the fourth
business day following mailing or upon receipt and (iv) if delivered by
overnight courier to the address as provided for in this Section, be deemed
given on the earlier of the first business day following the date sent by such
overnight courier or upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party from
time to time may change its address, facsimile number or other information for
the purpose of notices to that party by giving notice specifying such change to
the other parties hereto.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. HEADINGS. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part hereof.
18. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future Law, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby, (a) such provision will be fully severable, (b) this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their authorized officers as of the day and year first above
written.
WITNESS: INFRASTRUCTURE DEFENSE, INC., a
Delaware corporation
By
----------------------------- --------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
HOMECOM COMMUNICATIONS, INC. a
Delaware corporation
By
------------------------------ ----------------------------------
Name:
Title:
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