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EXHIBIT 10.48
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
March 30, 2001 (the "CLOSING DATE"), is made by and among XXXXXX TECHNOLOGIES,
INC., a Delaware corporation (the "COMPANY"), the undersigned Purchasers
(individually a "PURCHASER" and collectively the "PURCHASERS"), and XXXXXXXXX
XXXXXXXX, INC., a Pennsylvania corporation (the "PLACEMENT AGENT").
RECITALS
A. In connection with the Securities Purchase Agreement by and
among the parties hereto of even date herewith (the "PURCHASE AGREEMENT"), the
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue and sell to the Purchasers and the Purchasers have agreed to
purchase from the Company (i) an aggregate of 247,882 shares of the Company's
Series F Convertible Preferred Stock, par value $.01 per share (the "SERIES F
PREFERRED STOCK"), which are convertible into shares of the Company's common
stock, par value $.01 per share (the "COMMON STOCK"), in accordance with the
terms of the Certificate of Amendment to the Certificate of Incorporation
authorizing, creating and designating the Series F Preferred Stock (the
"CERTIFICATE OF AMENDMENT") and (ii) warrants to purchase an aggregate of 99,153
additional shares of Series F Preferred Stock (the "WARRANTS" and the shares
issuable upon exercise, the "WARRANT SHARES").
B. In connection with the closing of the transactions
contemplated by the Purchase Agreement, and as compensation to the Placement
Agent, the Company has agreed to issue to the Placement Agent a warrant to
purchase an aggregate of 9,915 shares of Series F Preferred Stock (the
"PLACEMENT AGENT WARRANTS" and the shares issuable upon exercise, the "PLACEMENT
AGENT WARRANT SHARES").
C. To induce the Purchasers to execute and deliver the Purchase
Agreement, and the Placement Agent to perform its services in connection with
the Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, or any similar successor statute
(collectively, the "SECURITIES ACT"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
of the Purchasers hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
a. "EXISTING RIGHTSHOLDER" means any stockholder of the
Company with registration rights granted pursuant to the Series A Convertible
Preferred Stock and Warrants to Purchase Series B Convertible Preferred Stock
Preferred Stock and Warrant Purchase Agreement dated September 12, 1997, by and
between the Company and HarbourVest Partners V - Direct Fund L.P. (formerly
known as Xxxxxxx Venture Partners V - Direct Fund L.P.), the Series D and
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Series D-1 Convertible Preferred Stock Preferred Stock Purchase Agreement
dated June 18, 1998, by and between the Company and the several purchasers named
therein, and/or the Series E Convertible Preferred Stock Preferred Stock
Purchase Agreement dated June 30, 1999, by and between the Company and Science
Applications International Corporation.
b. "INVESTOR" means a Purchaser, the Placement Agent and
any transferee or assignee thereof about whom the Purchaser or the Placement
Agent provides notice to the Company in accordance with Section 9 herein and to
whom a Purchaser or the Placement Agent assigns its rights under this Agreement
and who agrees in writing to become bound by the provisions of this Agreement in
accordance with Section 9 herein and any transferee or assignee thereof to whom
a transferee or assignee assigns its rights under this Agreement and who agrees
in writing to become bound by the provisions of this Agreement in accordance
with Section 9 herein. Any Person shall no longer be an Investor if such Person
no longer holds Registrable Securities, Series F Preferred Stock, Warrants,
Warrant Shares, Placement Agent Warrants or Placement Agent Warrant Shares.
c. "PERSON" means a corporation, a limited liability
company, an association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or a governmental
agency.
d. "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the Securities Act and pursuant
to Rule 415 under the Securities Act or any successor rule providing for
offering securities on a continuous or delayed basis ("RULE 415"), and the
declaration or ordering of effectiveness of such Registration Statement(s) by
the United States Securities and Exchange Commission (the "SEC").
e. "REGISTRABLE SECURITIES" means (i) the shares of
Common Stock issued or issuable upon conversion of the Series F Preferred Stock,
the Warrant Shares and the Placement Agent Warrant Shares (such Common Stock is
referred to collectively as the "CONVERSION SHARES") and (ii) any shares of
capital stock issued or issuable with respect to the Conversion Shares, as a
result of any stock split, stock dividend, recapitalization, exchange or similar
event or otherwise, without regard to any limitations on conversions of the
Series F Preferred Stock or exercises of Warrants or Placement Agent Warrants.
For the purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities, when (i) the Registration Period (as defined below) is
over, (ii) when they are sold pursuant to a Registration Statement, or (iii) the
Registrable Securities are proposed to be sold or distributed by a Person not
entitled to the registration rights granted by this Agreement.
f. "REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the Securities
Act covering the Registrable Securities.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Purchase Agreement and its
exhibits, schedules and attachments.
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2. Registration.
a. Mandatory Registration. The Company shall prepare,
and, as soon as practicable, but in no event later than May 14, 2001 or such
later date as the Company and the holders of a majority of the Registrable
Securities (with the holders of Series F Preferred Stock and/or Warrants
consenting on an as converted and as exercised basis) shall agree in writing, or
in the event the Series F Preferred Stock and Warrants have not been issued at
such time, such later date as the Company and the Purchasers of a majority of
the shares of Series F Preferred Stock to be purchased pursuant to the Purchase
Agreement shall agree in writing (the "FILING DEADLINE"), file with the SEC a
Registration Statement or Registration Statements (as necessary) for an offering
to be made on a continuous basis pursuant to Rule 415 on Form S-3 covering the
resale of the Registrable Securities as provided for in this Section 2a,
provided, however, that in the event the SEC, pursuant to its rules, regulations
or otherwise, prohibits the Company from filing a Registration Statement prior
to the actual issuance of the Series F Preferred Stock, Warrants and Placement
Agent Warrants pursuant to the Purchase Agreement, then the Filing Deadline
shall be the later of (i) the day following the Escrow Closing or if the SEC is
not open for business on such day, on the next day that the SEC is open for
business, or (ii) the date the SEC, pursuant to its rules, regulations or
otherwise, permits such filing. In the event that Form S-3 is unavailable for
such a registration, the Company shall use such other form as is available for
such a registration, subject to the provisions of Section 2d. The Company shall
use its best efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable after the filing thereof but in no
event later than the date which is one hundred eighty (180) days after the
Closing Date or such later date as the Company and the holders of a majority of
the Registrable Securities (with the holders of Series F Preferred Stock and/or
Warrants consenting on an as converted and as exercised basis) shall agree in
writing (as so extended, the "EFFECTIVENESS DEADLINE"), provided, however, that
in the event the Filing Deadline is delayed by the SEC, pursuant to its rules,
regulations, or otherwise, as provided in this Section 2a, then the
Effectiveness Deadline shall be the date that is the later of (i) one hundred
eighty (180) days after the Closing Date or (ii) one hundred (100) days after
the Filing Deadline. Notwithstanding any other provision herein, the Company
shall have no liability hereunder for its failure to file with the SEC a
Registration Statement by the Filing Deadline, or to cause such Registration
Statement to be declared effective by the SEC by the Effectiveness Deadline, in
the event the failure to file a Registration Statement or to cause the
effectiveness of such Registration Statement, on or before such respective dates
arises from the action or inaction of any Investor, including any Investor's
failure to comply with its obligation pursuant to Section 5 herein (an "INVESTOR
DELAY").
b. Allocation of Registrable Securities. The initial
number of Registrable Securities included in any Registration Statement and any
other shares of Common Stock included in the Registration Statement pursuant to
registration rights previously granted to the Existing Rightsholders (solely for
purposes of this Section 2b, such shares of Common Stock included in the
Registration Statement pursuant to registration rights previously granted to the
Existing Rightsholders shall be deemed to be Registrable Securities) and each
increase in the number of Registrable Securities included therein shall be
allocated pro rata among the Investors and Existing Rightsholders based on the
number of Registrable Securities held by each Investor and Existing Rightsholder
at the time the Registration Statement covering such initial number of
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Registrable Securities or increase thereof is declared effective by the SEC. In
the event that an Investor or Existing Rightsholder sells or otherwise transfers
any of such Investor's or Existing Rightsholders' Registrable Securities to
another party who becomes an Investor or Existing Rightsholder, as the case may
be, each transferee Investor or Existing Rightsholder shall be allocated a pro
rata portion of the then remaining number of Registrable Securities included in
such Registration Statement for such transferor Investor or Existing
Rightsholder. Any shares of Common Stock included in a Registration Statement
and which remain allocated to any Person which ceases to hold any Registrable
Securities covered by such Registration Statement shall be allocated to the
remaining Investors and Existing Rightsholders, pro rata based on the number of
Registrable Securities then held by such Investors and Existing Rightsholder
that are covered by such Registration Statement.
c. Legal Counsel. Subject to Section 6 hereof, the
Purchasers holding a majority of the Registrable Securities shall have the right
to select one legal counsel ("LEGAL COUNSEL") to review and, if applicable,
comment on, the Registration Statement and any amendments thereto pursuant to
this Section 2. The Company shall reasonably cooperate with Legal Counsel in
connection with its review of the Registration Statement.
d. Ineligibility for Form S-3. In the event that Form
S-3 is not available for any registration of Registrable Securities hereunder,
the Company shall (i) register the sale of the Registrable Securities on another
appropriate form that is reasonably acceptable to the holders of a majority of
the Registrable Securities (with the holders of Series F Preferred Stock and/or
Warrants consenting on an as converted and as exercised basis) and (ii)
undertake to register the Registrable Securities on Form S-3 as soon as such
form is available, provided that the Company shall maintain the effectiveness of
the Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.
e. Sufficient Number of Shares Registered. In the event
the number of shares available under a Registration Statement filed pursuant to
Section 2a is insufficient to cover all of the Registrable Securities required
to be covered by such Registration Statement (solely for purposes of this
Section 2e, any shares of Common Stock included in the Registration Statement by
any Existing Rightsholder pursuant to registration rights previously granted to
such Existing Rightsholder shall be deemed to be Registrable Securities), the
Company shall amend the Registration Statement, or file a new Registration
Statement (on the short form available therefor, if applicable), or both, so as
to cover 100% of the number of such Registrable Securities as of the trading day
immediately preceding the date of the filing of such amendment or new
Registration Statement, in each case, as soon as practicable, but in any event
not later than forty-five (45) days after the necessity therefor arises. The
Company shall use its best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as reasonably practicable
following the filing thereof. For purposes of the foregoing provision, the
number of shares available under a Registration Statement shall be deemed
"insufficient to cover all of the Registrable Securities" if at any time the
number of Registrable Securities covered by such Registration Statement is
greater than the number of shares of Common Stock available for resale under
such Registration Statement. The calculation set forth in the foregoing sentence
shall be made without regard to any limitations on the conversion of the Series
F Preferred
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Stock, the Warrant Shares or the Placement Agent Warrant Shares and such
calculation shall assume that the Series F Preferred Stock, the Warrant Shares
and the Placement Agent Warrant Shares are then convertible into shares of
Common Stock at the then prevailing Conversion Price (as defined in the
Certificate of Amendment).
f. Incidental or "Piggyback" Registration. If the
Company proposes to file a Registration Statement under the Securities Act with
respect to an offering of Common Stock by the Company for its own account (other
than a Registration Statement on Form S-4 or S-8 or any successor thereto) or
for the account of any stockholder of the Company, then the Company shall give
written notice of such proposed filing to each of the Investors at least twenty
(20) days before the anticipated filing date, and such notice shall describe the
proposed registration and distribution and offer such Investors the opportunity
to register the number of Registrable Securities as each such Investor may
request, subject in each case to the terms of any existing registration rights
agreement(s) (an "INCIDENTAL REGISTRATION"). The Company shall use its
reasonable best efforts (within twenty (20) days of the notice provided for in
the preceding sentence) to cause the managing underwriter or underwriters in the
case of a proposed firm commitment underwritten offering (the "UNDERWRITER") to
permit each of the Investors who have requested in writing to participate in the
Incidental Registration to include its or his Registrable Securities in such
offering on the same terms and conditions as the securities of the Company or
the account of such other stockholder, as the case may be, included therein. In
connection with any Incidental Registration under this Section 2f involving an
underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the Investors
thereof accept the terms of the underwritten offering as agreed upon between the
Company, such other stockholders, if any, and the Underwriter, and then only in
such quantity as the Underwriter believes will not jeopardize the success of the
offering by the Company. If the Underwriter determines that the registration of
all or part of the Registrable Securities which the Investors have requested to
be included would materially adversely affect the success of such offering, then
the Company shall be required to include in such Incidental Registration, to the
extent of the amount that the Underwriter believes may be sold without causing
such adverse effect: first, all of the securities to be offered for the account
of the Company; second, securities requested to be included in such offering
pursuant to registration rights granted by the Company whose rights are, by
their terms, superior to those granted to Investors hereunder; third, to the
Registrable Securities to be offered for the account of the Investors pursuant
to this Section 2f and any securities requested to be included in such offering
pursuant to registration rights granted by the Company whose rights are, by
their terms, pari passu to those granted to Investors hereunder, pro rata based
on the number of Registrable Securities owned by each such Investor and
securities owned by each such other holder or registration rights; and fourth,
any other securities requested to be included in such offering. Notwithstanding
anything herein to the contrary, no holder of Registrable Securities may
participate in any underwritten registration hereunder unless such holder (i)
agrees to enter into an underwriting agreement in customary form with the
Underwriter or Underwriters and (ii) accurately completes and executes in a
timely manner all questionnaires, powers of attorney, indemnities, custody
agreements, underwriting agreements, lock-up agreements and other documents
reasonably required under the terms of such underwriting agreements.
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g. Liquidated Damages. If, other than as a result of an
Investor Delay, a Registration Statement covering all of the Registrable
Securities (i) is not filed with the SEC on or prior to the Filing Deadline or
(ii) has not been declared effective by the SEC on or prior to the Effectiveness
Deadline (any such event, a "REGISTRATION DEFAULT"), then the Company shall pay
each Purchaser liquidated damages in an amount equal to one percent (1.0%) of
the aggregate purchase price paid by such Purchaser for the Series F Preferred
Stock or Warrants that are convertible or exercisable for the Registrable
Securities not included in the Registration Statement per calendar month,
including a pro rata portion thereof for any partial calendar month, that such
Registration Default continues ("LIQUIDATED DAMAGES"). The Company shall not in
any event be required to pay Liquidated Damages for more than one Registration
Default at any given time, and upon cure of a Registration Default (by the
filing or the declaration of effectiveness of the Registration Statement, as
applicable) such Liquidated Damages shall cease to accrue. All accrued
Liquidated Damages shall be paid in cash to the Purchasers entitled thereto, in
proportion to the aggregate number of Registrable Securities beneficially owned
by each such Purchasers, on the last business day of March, June, September or
December, as applicable, following the Effectiveness Deadline. The foregoing
shall not be the exclusive remedy of the Purchasers in the event of a breach by
the Company of this Section 2g.
h. Underwritten Offering.
(i) Timing of Demand Registrations. At any time
after the effective date of Registration Statement filed pursuant to Section 2a
hereof, the holders of forty percent (40%) in interest of the Registrable
Securities (with the holders of Series F Preferred Stock and/or Warrants
representing on an as converted and as exercised basis) (individually a
"DEMANDING HOLDER" and collectively, the "DEMANDING HOLDERS"), may request that
the Company file a Registration Statement under the Securities Act covering the
sale by them of Registrable Securities and all other validly issued Common Stock
or other securities convertible or exercisable into Common stock of which such
Demanding Holder is a holder (the "DEMAND SECURITIES") for the purpose of
selling such Demand Securities through a firm commitment underwritten offering
(a "DEMAND REGISTRATION"). In the event that any Existing Rightsholder exercises
its rights under existing registration rights to have all or part of its shares
of Common Stock to which it is entitled to incidental registration rights
included in a Demand Registration, such entity shall be deemed to be a Demanding
Holder and such shares shall be deemed to be Demand Securities for purposes of
this Section 2h.
Upon receipt of a valid Demand Registration, the
Company shall (i) if required by the Securities Act and all relevant securities
laws, rules and regulations, file a post-effective amendment to the relevant
Registration Statement regarding the Registrable Securities, or such other
filings as necessary to effect a Demand Registration, (ii) within ten (10)
Business Days give written notice to all holders of Registrable Securities
(other than the Demanding Holders) that they may exercise their piggyback rights
pursuant to Section 2f hereof, with respect to such registration, and (iii)
within ten (10) Business Days give written notice to all holders of Common Stock
(other than Demanding Holders) or other securities convertible or exercisable
into Common Stock who hold piggyback rights. Subject to this Section 2h, the
Company shall thereafter use its reasonable best efforts to effect the
registration under the Securities Act of all Demand Securities that Demanding
Holders have requested to include in such registration
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pursuant to the request for Demand Registration and pursuant to notices that the
Company receives, within twenty (20) days after the date of its written notice,
from Investors and other holders of Common Stock or other securities convertible
or exercisable into Common Stock, that desire to exercise their piggyback
rights.
(ii) Number of Demand Registrations. The Company
shall be obligated to prepare, file and cause to become effective pursuant to
this Section 2h an aggregate of no more than three (3) Registration Statements
on Form S-3 or, in the event Form S-3 is not available, such other form as is
available for such registration; provided, however, that the Company shall not
be obligated to file more than one Registration Statement pursuant to this
Section 2h during any six-month period. A Registration Statement will not count
as a Demand Registration unless it is declared effective by the SEC; provided,
however, that in the event a Registration Statement is withdrawn at the request
of the Demanding Holders, the Demanding Holders will pay all Registration
Expenses with respect to such registration unless they agree to forfeit the
Demand Registration right that they exercised in connection with such
registration.
(iii) Underwriter's Cutback. The Company may, and
may allow other holders of securities of the Company to, include securities in a
Demand Registration if, but only if, the managing underwriter concludes that
such inclusion will not interfere with the successful marketing of all the
Registrable Securities requested to be included in such Demand Registration. If,
in the good faith judgment of the managing underwriter, marketing factors
require a limitation of the number of Registrable Securities to be underwritten,
the number of shares of Registrable Securities to be included in such Demand
Registration shall be reduced in the following order until such inclusion, in
the good faith judgment of the managing underwriter, will not interfere with the
successful marketing of the remaining Registrable Securities: first, all
securities that are not contractually entitled to be included in such Demand
Registration shall be excluded; second, all securities that are entitled to be
included in such Demand Registration pursuant to contractual commitments made by
the Company other than pursuant to this Agreement shall be excluded; third,
securities that are entitled to be included in such Demand Registration pursuant
to the exercise of piggyback rights shall be excluded, with such number of
excluded securities to be allocated on a pro rata basis among the holders of
such piggyback rights in accordance with the number of Registrable Securities
then outstanding and held by each such Investor; and fourth, pro rata based on
the number of Demand Securities owed by each Demanding Holder.
(iv) Managing Underwriter. The managing
underwriter or other underwriters of any underwritten public offering covered by
a Demand Registration shall be selected by the mutual agreement of a majority in
interest of the Demanding Holders, and shall be reasonably acceptable to the
Board of Directors of the Company.
(v) Underwriter's Agreement. Upon receipt of a
valid Demand Registration, the Company shall enter into and perform customary
agreements (including an underwriting agreement in customary form with the
managing underwriter) and take such other actions as are prudent and reasonably
required in order to expedite or facilitate the disposition of such Demand
Securities, including, without limitation, causing its officer's to be
reasonably available for and to participate in "road shows," due diligence
inquiries and other information meetings as reasonably requested by the managing
underwriter.
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3. Limitations on Registration Rights. Any other provision of
this Agreement notwithstanding, if the Company furnishes to the Investors a
certificate signed by a duly authorized officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company it would be
seriously detrimental to the Company for such Registration Statement to be filed
on or before the date filing would be required or to update or correct the
Registration Statement or prospectus pursuant to Section 4 hereof prior to its
effectiveness, then the Company shall be entitled to postpone filing the
Registration Statement or updating or correcting the Registration Statement or
prospectus, as applicable, or otherwise be obligated to effect any registration
pursuant to this Agreement for up to ninety (90) days; provided, however, that
the Company shall only be allowed to postpone filing the Registration Statement
or updating or correcting the Registration Statement or prospectus prior to its
effectiveness, as applicable, pursuant to this Section 3, one time during any
twelve (12) month period.
4. Company Obligations. At such time as the Company is obligated
to file a Registration Statement with the SEC pursuant to Section 2, the Company
will use its best efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the Company shall have the following obligations:
a. The Company shall prepare and file with the SEC a
Registration Statement with respect to the Registrable Securities on or before
the Filing Deadline and use its best efforts to cause such Registration
Statement relating to the Registrable Securities to become effective as soon as
possible after such filing and keep such Registration Statement effective
pursuant to Rule 415 at all times until the earlier of (i) the date as of which
each Investor may sell all of its Registrable Securities during a single three
(3) month period pursuant to Rule 144 promulgated under the Securities Act (or
successor thereto) ("RULE 144"), or (ii) the date on which (A) the Investors
shall have sold or otherwise disposed of all the Registrable Securities and (B)
none of the outstanding Series F Preferred Stock, Warrants, the Placement Agent
Warrants or the Conversion Shares are held by Persons entitled to the
registration rights granted by this Agreement (the "REGISTRATION PERIOD"). The
term "BEST EFFORTS" as used in the first sentence of this Section 4a shall mean,
among other things, that the Company shall submit to the SEC, within three (3)
business days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
has no further comments on the Registration Statement, as the case may be, a
request for acceleration of effectiveness of such Registration Statement to a
time and date not later than forty-eight (48) hours after the submission of such
request. Notwithstanding the foregoing, Investors which, individually or in the
aggregate with its affiliates, holds Registrable Securities representing more
than three percent (3%) of the total outstanding equity securities of the
Company shall, pursuant to, and limited by Section 3 above, continue to have the
right to require the Company to prepare an underwritten offering and shall
continue to have rights under Section 2f, and the term "Registrable Securities"
shall include the shares held by such 3% holder, despite the termination of the
Registration Period above, for all Registrable Securities it then holds.
b. Subject to Section 4l, the Company shall prepare and
file with the SEC such amendments (including post-effective amendments) and
supplements to a Registration
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Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the Securities Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement.
c. The Company shall (a) permit Legal Counsel to review
and comment upon a Registration Statement and all amendments and supplements
thereto at least five (5) days prior to their filing with the SEC and (b) not
file any document in a form to which Legal Counsel reasonably objects and has
advised the Company in writing of its objection and the basis for such
objection, provided that notwithstanding anything to the contrary in this
Agreement, the Company shall suffer no adverse consequence from any delay in the
filing of a Registration Statement if such delay is caused by any delay in
review of or comment on such Registration Statement by Legal Counsel. The
Company shall furnish to Legal Counsel, without charge, (i) copies of any
correspondence with the SEC or the Staff of the SEC to the Company or its
representatives relating to the effectiveness of the Registration Statement,
(ii) promptly after the same is prepared and filed with the SEC, one copy of any
Registration Statement and any amendment(s) thereto, including financial
statements and schedules, and all exhibits and (iii) upon the effectiveness of
any Registration Statement, one copy of the prospectus included in such
Registration Statement and all amendments and supplements thereto.
d. The Company shall furnish to each Investor whose
Registrable Securities are included in any Registration Statement, without
charge, (i) promptly after the same is prepared and filed with the SEC, at least
one copy of such Registration Statement and any amendment(s) thereto, including
financial statements and schedules, and all exhibits, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the prospectus
included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may reasonably request)
and (iii) such other documents, including copies of any preliminary or final
prospectus, as such Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned by such
Investor.
e. Subject to Section 4l, the Company shall use
reasonable efforts to (i) register and qualify the Registrable Securities
covered by a Registration Statement under such securities or "blue sky" laws of
such jurisdictions in the United States as Legal Counsel or any Investor
reasonably requests, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 4e, (y) subject itself to general taxation in any such
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jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify Legal Counsel and each Investor
who holds Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or qualification
of any of the Registrable Securities for sale under the securities or "blue sky"
laws of any jurisdiction in the United States or its receipt of actual notice of
the initiation or threat of any proceeding for such purpose.
f. As promptly as practicable after becoming aware of
such event or development, the Company shall notify Legal Counsel and each
Investor in writing of the happening of any event as a result of which the
prospectus included in a Registration Statement, as then in effect, includes an
untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (provided
that such notice shall not contain any material, non- public information), and
promptly prepare a supplement or amendment to such Registration Statement to
correct such untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to Legal Counsel and each Investor (or such other number
of copies as Legal Counsel or such Investor may reasonably request). The Company
shall also promptly notify Legal Counsel and each Investor in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to Legal
Counsel by overnight mail as promptly as possible), (ii) of any request by the
SEC for amendments or supplements to a Registration Statement or related
prospectus or related information, and (iii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
g. The Company shall use its reasonable best efforts to
prevent the issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify Legal Counsel and each Investor who
holds Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
h. At the reasonable request of any Purchaser and at the
Company's expense, the Company shall use its reasonable best efforts to furnish
to such Purchaser, on the date of the effectiveness of the Registration
Statement and thereafter from time to time upon any change or addition
(including by way of incorporation by reference) to the financial statements or
financial information included in the Registration Statement (i) a letter, dated
such date, from the Company's independent certified public accountants in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to
such Purchaser and the Company and any underwriter and (ii) an opinion, dated as
of such date, of counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to such Purchaser and any
underwriter.
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i. The Company shall use its best efforts either to
cause all the Registrable Securities covered by a Registration Statement to be
listed on each securities exchange or The Nasdaq National Market on which
securities of the same class or series issued by the Company are then listed, if
any, if the listing of such Registrable Securities is then permitted under the
rules of such exchange or The Nasdaq National Market. The Company shall pay all
fees and expenses in connection with satisfying its obligation under this
Section 4i.
j. The Company shall cooperate with the Investors who
hold Registrable Securities being offered and, to the extent applicable, to
facilitate the timely preparation and delivery of certificates representing the
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case may
be, as the Investors may reasonably request and registered in such names as the
Investors may request.
k. Within two (2) business days after a Registration
Statement which includes the Registrable Securities is declared effective by the
SEC, the Company shall deliver, and shall cause legal counsel for the Company to
deliver, to the transfer agent for such Registrable Securities (with copies to
the Investors whose Registrable Securities are included in such Registration
Statement) written confirmation that such Registration Statement has been
declared effective by the SEC.
l. Notwithstanding anything to the contrary herein, at
any time after the applicable Registration Statement has been declared effective
by the SEC, the Company may delay the disclosure of material non-public
information concerning the Company the disclosure of which at the time is not,
in the good faith opinion of the Board of Directors of the Company, in the best
interest of the Company (a "GRACE PERIOD"); provided, that the Company shall
promptly (i) notify the Investors in writing of the existence of material
non-public information giving rise to a Grace Period (provided that in each
notice the Company will not disclose the content of such material non-public
information to the Investors) and the date on which the Grace Period will begin,
and (ii) notify the Investors in writing of the date on which the Grace Period
ends; and, provided further, that no Grace Period shall exceed 30 consecutive
days and during any consecutive 365 day period, such Grace Periods shall not
exceed an aggregate of 90 days (an "ALLOWABLE GRACE PERIOD"). For purposes of
determining the length of a Grace Period above, the Grace Period shall begin on
and include the date the Investors receive the notice referred to in clause (i)
and shall end on and include the later of the date the Investors receive the
notice referred to in clause (ii) and the date referred to in such notice. The
provisions of Section 4f hereof shall not be applicable during the period of any
Allowable Grace Period. Upon expiration of the Grace Period, the Company shall
again be bound by the first sentence of Section 4f with respect to the
information giving rise thereto.
m. If requested by an Investor, the Company shall (i) as
soon as practicable incorporate in a prospectus supplement or post-effective
amendment such information as an Investor reasonably requests to be included
therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being offered or sold, the purchase price being paid
therefor and any other terms of the offering of the Registrable Securities to be
sold in such other offering provided that
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such information is required to be included in the Registration Statement by the
Securities Act; (ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) as soon as practicable, supplement or make amendments to
any Registration Statement if reasonably requested by an Investor of such
Registrable Securities.
n. The Company shall use its reasonable best efforts to
cause the Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such Registrable
Securities.
o. The Company shall make generally available to its
security holders as soon as practical, but not later than 90 days after the
close of the period covered thereby, an earnings statement as contemplated by
Section 11(a) of the Securities Act (in form and in a manner complying with the
provisions of Rule 158 promulgated under the Securities Act). The Company shall
otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC in connection with any registration hereunder.
p. The Company shall make available for inspection by
(i) any Investor, (ii) Legal Counsel, (iii) one firm of accountants or other
agents retained by the Investors and (iv) any underwriter (collectively, the
"INSPECTORS"), all pertinent financial and other records, and pertinent
corporate documents and properties of the Company (collectively, the "RECORDS"),
as shall be reasonably requested by each Inspector, and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree to
hold in strict confidence and shall not make any disclosure (except to an
Investor) or use of any Record or other information which the Company determines
in good faith to be confidential, and of which determination the Inspectors are
so notified, unless (a) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in any Registration Statement or is otherwise
required under the Securities Act at a time when there is no Grace Period, (b)
the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction, or
(c) the information in such Records has been made generally available to the
public other than by disclosure in violation of this or any other agreement of
which the Inspector has knowledge. Each Investor agrees that it shall, upon
learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential.
5. Obligations of the Investors.
a. At least seven (7) days prior to the first
anticipated filing date of a Registration Statement, the Company shall notify
each Investor in writing of the information the Company requires from each such
Investor if such Investor elects to have any of such Investor's Registrable
Securities included in such Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with
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respect to the Registrable Securities of a particular Investor that such
Investor shall furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be required to effect the
registration of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably request.
b. Each Investor by such Investor's acceptance of the
Registrable Securities agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Investor has notified the Company
in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from such Registration Statement.
c. Each Investor agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
4g, the first sentence of Section 4f, or Section 4l, such Investor will
immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until such
Investor's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4d or the first sentence of Section 4f or receipt of
notice that no supplement or amendment is required, or in the case of Section 4l
that the Grace Period has expired and if so directed by the Company, such
Investor shall deliver to the Company or destroy (and deliver to the Company a
written certificate of destruction) all copies in such Investor's possession, of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
d. To the extent requested by the Underwriter in the
case of an underwritten public offering, and if all of the Company's executive
officers, directors and holders in excess of five percent (5%) of its
outstanding capital stock execute agreements identical to those referred to in
this Section 5d, each Investor agrees not to effect any public sale or
distribution of any Registrable Securities or of any securities convertible into
or exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 promulgated under the Securities Act, during the ninety
(90) day period or such shorter period, if any, mutually agreed upon by such
Investor and the Underwriter beginning on the effective date of such
Registration Statement (except as part of such registration).
e. If, however, an Investor has entered into a contract
for sale of its Registrable Securities prior to the Investor's receipt of a
notice from the Company of the happening of any event of the kind described in
Section 4g, the first sentence of Section 4f, or Section 4l and for which the
Investor has not yet settled, the Company agrees to (i) cause its transfer agent
to deliver unlegended shares of Common Stock to a transferee of the Investor in
accordance with the terms of the purchase agreement in connection with any sale,
or (ii) be fully liable for any damages resulting from any breach by the
Investor in complying with this Section 5e.
6. Expenses of Registration. Except as otherwise set forth
herein, all reasonable expenses, other than underwriting discounts and brokerage
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 4, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees
shall be
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paid by the Company. In addition, the Company shall reimburse the Investors for
the reasonable fees and disbursements of Legal Counsel in connection with
registrations, filings or qualifications pursuant to Sections 2 and 4 of this
Agreement.
7. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
a. Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement and without limitation as to
time, indemnify and hold harmless each Investor, the officers, directors, agents
(including any underwriters retained by such Investor in connection with the
offer and sale of Registrable Securities), each Person who controls any such
Investor (within the meaning of Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended, (the "EXCHANGE ACT")) and
the officers, directors, agents and employees of each such controlling Person,
to the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable costs of preparation and attorneys' fees) and expenses (collectively,
"LOSSES"), that arise out of or are based upon (x) any untrue statement of a
material fact or alleged untrue statement of material fact contained in the
Registration Statement, any prospectus, or any form of prospectus or amendment
or supplement thereto, or (y) any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (z) any violation or alleged violation by the Investor (or
its underwriter) of the prospectus delivery requirements of the Securities Act.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 7(a): (w) shall not apply to the extent, but
only to the extent, that such untrue statements or omissions are based solely
upon information regarding such Investor furnished in writing to the Company by
or on behalf of such Investor expressly for use in any Registration Statement,
prospectus or any amendment or supplement thereto, which information was
reasonably relied on by the Company for use therein or to the extent that such
information relates to such Investor or such Investor's or Underwriter's
proposed method of distribution of Registrable Securities and was reviewed and
approved by such Investor or Underwriter for use in the Registration Statement,
such prospectus or such form of prospectus or in any amendment or supplement
thereto; (x) with respect to any preliminary prospectus, shall not inure to the
benefit of any such Investor, Underwriter or any related Indemnified Persons
from whom the Person asserting any such Losses purchased the Registrable
Securities that are the subject thereof (or to the benefit of any Person
controlling such Person) if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected in the prospectus, as then
amended or supplemented, if such prospectus was timely made available by the
Company pursuant to Section 4d hereof; (y) shall not be available to the extent
such Losses are based on a failure of an Investor to deliver or to cause to be
delivered the prospectus made available by the Company; and (z) shall not apply
to amounts paid in settlement of any losses, claims, damages, liabilities, costs
if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
b. Indemnification by Investors. Each Investor shall,
severally and not jointly, indemnify and hold harmless the Company, the
directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act
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and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses to the extent they arise out of or
are based upon (x) any untrue statement of a material fact or alleged untrue
statement of material fact contained in the Registration Statement, any
prospectus, or any form of prospectus or amendment or supplement thereto, or (y)
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (z) any
violation or alleged violation by the Investor (or its underwriter) of the
prospectus delivery requirements of the Securities Act, including, without
limitation, Losses arising out of the failure to deliver, or to cause to be
delivered, or alleged failure to deliver or cause to be delivered any amendments
or supplements to the prospectus or supplement, if such amendment or supplement
was timely made available to such Investor; provided, however, that the Investor
shall be liable under this Section 7b to the extent, but only to the extent,
that such untrue statement or omission is made in reliance upon or results in
conformity with any information furnished in writing by such Investor to the
Company specifically for use in connection with the Registration Statement or
such prospectus or any amendment or supplement thereto, or to the extent that
such information relates to such Investor or such Investor's proposed method of
distribution of Registrable Securities and was reviewed and approved by such
Investor expressly for use in the Registration Statement, such prospectus or
such form of prospectus or any amendment or supplement thereto; provided,
further that the Investor shall be liable under this Section 7(b) for only that
amount of a claim or Losses as does not exceed the net proceeds to such Investor
as result of the sale of Registrable Securities pursuant to such Registration
Statement.
c. Conduct of Indemnification Proceedings.
(i) If any proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an "INDEMNIFIED
PARTY"), such Indemnified Party promptly shall notify the Person from whom
indemnity is sought (the "INDEMNIFYING PARTY") in writing promptly after receipt
by the Indemnified Party of notice of such proceeding, and the Indemnifying
Party shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of all fees and
expenses incurred in connection with defense thereof; provided, that the failure
of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and
only) to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have proximately and adversely prejudiced the
Indemnifying Party or the defense of such proceeding or is shown to be the
proximate cause of additional Losses.
(ii) An Indemnified Party shall have the right to
employ separate counsel in any such proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
to pay such fees and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such proceeding; or (3)
the named parties to any such proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by
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counsel that a conflict of interest is likely to exist if the same counsel were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable expenses of such counsel shall be at the expense of the
Indemnifying Party). Notwithstanding the foregoing, in no event shall an
Indemnifying Party be required to pay the expenses of more than one (1) separate
counsel. The Indemnifying Party shall not be liable for any settlement of any
such Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
d. Contribution. If a claim for indemnification under
Section 7a or 7b is unavailable to an Indemnified Party because of a failure or
refusal of a governmental authority to enforce such indemnification in
accordance with its terms (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 7c, any reasonable attorneys' or other fees or expenses incurred by
such party in connection with any proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification provided for
in this Section 7 was available to such party in accordance with its terms. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 7d were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7d, no Investor shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by the Investor from the sale of the Registrable
Securities subject to the proceeding exceeds the amount of any damages that the
Investor has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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.
e. Fees and Expenses - Indemnification. All fees and
expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection
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with investigating or preparing to defend such proceeding in a manner not
inconsistent with this Section 7) shall be paid to the Indemnified Party, as
incurred, within ten (10) business days after written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder); provided, however, this Section 7e shall not apply if there is a
bona fide dispute between the Indemnifying Party and the Indemnified Party as to
the Indemnified Party's right to indemnification in the instance in question.
f. Cumulative. The indemnity and contribution agreements
contained in this Section 7 are in addition to any liability that the
Indemnifying Parties may have to the Indemnified Parties.
8. Reports Under the Securities Act and the Exchange Act. With a
view to making available to the Investors the benefits of Rule 144 or any other
similar rule or regulation of the SEC that may at any time permit the Investors
to sell securities of the Company to the public without registration, the
Company agrees to:
a. 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 so long as the Company remains subject to such requirements and the
filing of such reports and other documents is required for the applicable
provisions of Rule 144; and
b. furnish to each Investor so long as such Investor
owns Registrable Securities, promptly upon request, (i) a written statement by
the Company that it has complied with the reporting requirements of the Exchange
Act or, if applicable, that there is publicly available the information
concerning the Company described in Rule 144(C)(2), (ii) unless available on the
XXXXX system, 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 to permit the investors to
sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights under this
Agreement shall be assignable by the Investors to any transferee of all or any
portion of Registrable Securities if: (i) the Investor agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after such assignment; (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned; (iii) immediately following such transfer or
assignment the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws; (iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence the transferee or assignee agrees
in writing with the Company to be bound by all of the provisions contained
herein; and (v) such transfer shall have been made in accordance with the
applicable requirements of the Purchase Agreement.
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10. Amendment of Registration Rights. Provisions 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 Investors who then hold two-thirds (2/3) of
the Registrable Securities (including Registrable Securities issuable upon
conversion of outstanding Series F Preferred Stock and Series F Preferred Stock
issuable upon conversion of Warrant Shares, in each case, with the holders of
Series F Preferred Stock and/or Warrants consenting on an as converted and as
exercised basis). Any amendment or waiver effected in accordance with this
Section 10 shall be binding upon each Investor and the Company. No such
amendment shall be effective to the extent that it applies to less than all of
the holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any
provision of any of this Agreement unless the same consideration also is offered
to all of the parties to this Agreement.
11. Miscellaneous.
a. A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
b. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) business day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
XXXXXX TECHNOLOGIES, INC.
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, Chief Financial Officer
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With copies to:
XXXXXX, XXXXXXX & XXXXXX, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to the Placement Agent:
XXXXXXXXX XXXXXXXX, INC.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
With copies to:
O'MELVENY & XXXXX LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
If to a Purchaser, to it at the address and facsimile number set forth below
adjacent to such Purchaser's name on EXHIBIT A hereto, with copies to such
Purchaser's representatives as set forth on EXHIBIT A, or at such other address
and/or facsimile number and/or to the attention of such other person as the
recipient party has specified by written notice given to each other party five
days prior to the effectiveness of such change. Written confirmation of receipt
(A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender's
facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by a nationally
recognized overnight delivery service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight
delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
c. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
d. The corporate laws of the State of Delaware shall
govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of
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law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
Each party hereby irrevocably waives any right it might have, and agrees not to
request, a jury trial for the adjudication of any dispute hereunder of in
connection herewith or arising out of this Agreement or any transaction
contemplated hereby.
e. This Agreement, the Purchase Agreement, the Escrow
Agreement by and among the parties hereto of even date herewith (the "ESCROW
AGREEMENT"), the Warrants and the Placement Agent Warrants are the entire
agreement among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof. Notwithstanding the foregoing, this
Agreement shall not alter or amend the rights of the Existing Rightsholders
under existing registration rights agreements.
f. Subject to the requirements of Section 9, this
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
i. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. All consents and other determinations to be made by
the Investors pursuant to this Agreement shall be made, unless otherwise
specified in this Agreement, by Investors holding a majority of the Registrable
Securities, determined as if all of the Series F Preferred Stock, Warrants,
Warrant Shares, Placement Agent Warrants and Placement Agent Warrant Shares then
outstanding have been converted into or exercised for Registrable Securities
without regard to any limitation on conversions of the Series F Preferred Stock
or exercises of the Warrants.
-20-
21
k. The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent and no
rules of strict construction will be applied against any party.
l. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the Investors shall be enforceable to the
fullest extent permitted by law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-21-
22
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
COMPANY:
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
PLACEMENT AGENT:
XXXXXXXXX XXXXXXXX, INC.
By: /s/ Illegible
------------------------------------------
Name:
Title: Managing Director
[PURCHASERS SIGNATURES BEGIN ON NEXT PAGE]
23
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
PURCHASERS:
HARBOURVEST PARTNERS VI - DIRECT FUND L.P.
By: HVP VI-DIRECT ASSOCIATES, L.L.C.
Its General Partner
By: HARBOURVEST PARTNERS, LLC
Its General Partner
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxxx, Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
24
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
SAIC VENTURE CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
25
[SIGNATURES CONTINUED ON NEXT PAGE]
26
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
ROYAL XXXXX VENTURES, LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Member
27
[SIGNATURES CONTINUED ON NEXT PAGE]
28
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
ST. XXXX VENTURE CAPITAL VI, LLC
By: SPVC MANAGEMENT VI, LLC
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
29
ABS VENTURES IV, L.P.
By: XXXXXXX CAPITAL, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx, its manager
ABX FUND, L.P.
By: XXXXXXX CAPITAL II, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx, its manager
[SIGNATURES CONTINUED ON NEXT PAGE]
30
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
HALIFAX FUND, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
31
[SIGNATURES CONTINUED ON NEXT PAGE]
32
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
BAYSTAR CAPITAL, L.P.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title:
BAYSTAR INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
33
[SIGNATURE PAGE TO XXXXXX REGISTRATION RIGHTS AGREEMENT]
SPECIAL SITUATIONS PRIVATE EQUITY
FUND, L.P.
By: /s/ Xxxxx Greenhouse
---------------------------------------
Name: Xxxxx Greenhouse
Title: Managing Director
SPECIAL SITUATIONS CAYMEN FUND, L.P.
By: /s/ Xxxxx Greenhouse
---------------------------------------
Name: Xxxxx Greenhouse
Title: Managing Director
