Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of the 26th day of February, 1999, by and between Wattage
Monitor Inc., a Nevada corporation (the "Company"), and each of the other
individuals and entities listed on the signature pages hereof (the
"Shareholders").
R E C I T A L S
WHEREAS, each of the Shareholders has acquired shares (the
"Shares") of common stock (the "Common Stock"), par value $.01 per share of the
Company, pursuant to the terms of an Agreement and Plan of Merger, dated as of
February 26th, 1999 (the "Merger Agreement"), by and among the Company and
WattMonitor LLC ("WMLLC"); and
WHEREAS, pursuant to the terms of the Merger Agreement, the
Company has agreed to enter into this Agreement with the Shareholders.
NOW, THEREFORE, in consideration of the mutual premises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Definitions and References. For purposes of this Agreement,
in addition to the definitions set forth above and elsewhere herein, the
following terms shall have the following meanings:
(a) The term "Commission" shall mean the Securities and
Exchange Commission and any successor agency.
(b) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing
a registration statement or similar document in compliance
with the 1933 Act (as herein defined) and the declaration or
ordering of effectiveness of such registration statement or
document.
(c) For purposes of this Agreement, the term "Registrable
Stock" shall mean the Shares. For purposes of this Agreement,
any Registrable Stock shall cease to be Registrable Stock when
(w) a registration statement covering such Registrable Stock
has been declared effective and such Registrable Stock has
been disposed of pursuant to such effective registration
statement, (x) such Registrable Stock is sold pursuant to Rule
144 (or any similar provision then in force) under the 1933
Act, (y) such Registrable Stock has been otherwise
transferred, no stop transfer order affecting such stock is in
effect
and the Company has delivered new certificates or other
evidences of ownership for such Registrable Stock not bearing
any legend indicating that such shares have not been
registered under the 1933 Act, or (z) such Registrable Stock
is sold by a person in a transaction in which the rights under
the provisions of this Agreement are not assigned.
(d) The term "Holder" shall mean the Shareholders or any
permitted transferee or assignee thereof to whom the rights
under this Agreement are assigned in accordance with Section
10 hereof, provided that the Shareholders or such transferee
or assignee shall then own the Registrable Stock.
(e) The term "1933 Act" shall mean the Securities Act
of 1933, as amended.
(f) An "affiliate of such Holder" shall mean a person who
controls, is controlled by or is under common control with
such Holder, or the spouse or children (or a trust exclusively
for the benefit of the spouse and/or children) of such Holder,
or, in the case of a Holder that is a partnership, its
partners.
(g) The term "Person" shall mean an individual,
corporation, partnership, trust, limited liability company,
unincorporated organization or association or other entity,
including any governmental entity.
(h) The term "Requesting Holders" shall mean a Holder of
or Holders of in the aggregate at least 25% of the
Registrable Stock.
(i) References in this Agreement to any rules, regulations
or forms promulgated by the Commission shall include rules,
regulations and forms succeeding to the functions thereof,
whether or not bearing the same designation.
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2. Demand Registration.
(a) Commencing one (1) year after the closing of the
merger of WMLLC into the Company, any Requesting Holders may
make a written request on two (2) occasions to the Company
(specifying that it is being made pursuant to this Section 2)
that the Company file a registration statement under the 1933
Act (or a similar document pursuant to any other statute then
in effect corresponding to the 0000 Xxx) covering the
registration of all or any portion of Registrable Stock. In
such event, the Company shall (x) within ten (10) days
thereafter notify in writing all other Holders of Registrable
Stock of such request, and (y) use its best efforts to cause
to be registered under the 1933 Act all Registrable Stock
covered by the written request of the Requesting Holders,
within thirty (30) days after the Company has been given such
notice.
(b) If the Requesting Holders intend to distribute the
Registrable Stock covered by their request by means of an
underwritten offering, they shall so advise the Company as a
part of their request pursuant to Section 2(a) above, and the
Company shall include such information in the written notice
referred to in clause (x) of Section 2(a) above. In such
event, the Holder's right to include its Registrable Stock in
such registration shall be conditioned upon such Holder's
participation in such underwritten offering and the inclusion
of such Holder's Registrable Stock in the underwritten
offering to the extent provided in this Section 2. All Holders
proposing to distribute Registrable Stock through such
underwritten offering shall enter into an underwriting
agreement in customary form with the underwriter or
underwriters. Such underwriter or underwriters shall be
selected by a majority in interest of the Requesting Holders
and shall be approved by the Company, which approval shall not
be unreasonably withheld; provided, that all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such
Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting
agreement shall be conditions precedent to the obligations of
such Holders; and provided further, that no Holder shall be
required to make any representations or warranties to or
agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such
Holder, the Registrable Stock of such Holder and such Holder's
intended method of distribution and any other representation
required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section
2 to the contrary, if the managing underwriter of an
underwritten offering of the Registrable Stock requested to be
registered pursuant to this Section 2 advises the Requesting
Holders in writing that in its opinion marketing factors
require a limitation of the number of shares of Registrable
Stock to be underwritten, the Requesting Holders shall so
advise all Holders of Registrable Stock that would otherwise
be underwritten pursuant hereto, and the number of shares of
Registrable Stock that may be included in such underwritten
offering shall be allocated among all such Holders, including
the Requesting Holders, in proportion (as nearly as
practicable) to the number of shares of Registrable Stock
requested to be included in such registration by each Holder
at the time of filing the registration statement; provided,
that in the event of such limitation of the number of shares
of Registrable Stock to be underwritten, the Holders shall be
entitled to an additional demand registration pursuant to this
Section 2. If any Holder of Registrable Stock
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disapproves of the terms of the underwriting, such Holder may
elect to withdraw by written notice to the Company, the
managing underwriter and the Requesting Holders. The
securities so withdrawn also shall be withdrawn from
registration.
(d) Notwithstanding any provision of this Agreement to
the contrary, the Company shall not be required to effect a
registration pursuant to this Section 2 during the period
starting with the fourteenth (14th) day immediately preceding
the date of an anticipated filing by the Company of, and
ending on a date ninety (90) days following the effective date
of, a registration statement pertaining to a public offering
of securities for the account of the Company; provided, that
the Company shall actively employ in good faith all reasonable
efforts to cause such registration statement to become
effective; and provided further, that the Company's estimate
of the date of filing such registration statement shall be
made in good faith.
(e) The Company shall be obligated to effect and pay
for a total of only two (2) registrations pursuant to this
Section 2, unless increased pursuant to Section 2(c) hereof;
provided, that a registration requested pursuant to this
Section 2 shall not be deemed to have been effected for
purposes of this Section 2(e), unless (i) it has been declared
effective by the Commission, (ii) if it is a shelf
registration, it has remained effective for the period set
forth in Section 4(b), (iii) the offering of Registrable Stock
pursuant to such registration is not subject to any stop
order, injunction or other order or requirement of the
Commission (other than any such action prompted by any act or
omission of the Holders), and (iv) no limitation of the number
of shares of Registrable Stock to be underwritten has been
required pursuant to Section 2(c) hereof.
3. Piggyback Rights. Until such time as all the Registrable
Stock is registered under the 1933 Act or not restricted as to sale pursuant
Rule 144 under the 1933 Act, then in the event the Company intends to file a
registration statement or statements for the public sale of securities for cash
(other than a Form X-0, X-0 or comparable registration statement), it will
notify the Holders of such intent, and if so requested, register the Registrable
Stock issued to the Holders at the expense of the Company (including reasonable
fees and expenses of their counsel, but excluding any underwriting or selling
commissions).
4. Obligations of the Company. Whenever required under Section
2 to use its best efforts to effect the registration of any Registrable Stock,
the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission, not later
than ninety (90) days after receipt of a request to file a
registration statement with respect to such Registrable Stock,
a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of
such issue of Registrable Stock in accordance with the
intended method of distribution thereof, and use its best
efforts to cause such registration statement to become
effective within 75 days after filing with the Commission;
provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the
Company will (i) furnish to one counsel selected by the
Requesting Holders copies of all such documents proposed to be
filed, and (ii) notify each such Holder of any stop order
issued or threatened by the
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Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement (and
any prospectus used in connection therewith) as may be
necessary to keep such registration statement effective for a
period of not less than one hundred twenty (120) days or such
shorter period which will terminate when all Registrable Stock
covered by such registration statement has been sold (but not
before the expiration of the forty (40) or ninety (90) day
period referred to in Section 4(3) of the 1933 Act and Rule
174 thereunder, if applicable), and comply with the provisions
of the 1933 Act with respect to the disposition of all
securities covered by such registration statement during such
period in accordance with the intended methods of disposition
by the sellers thereof set forth in such registration
statement;
(c) furnish to each Holder and any underwriter of
Registrable Stock to be included in a registration statement
copies of such registration statement as filed and each
amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus)
and such other documents as such Holder may reasonably request
in order to facilitate the disposition of the Registrable
Stock owned by such Holder;
(d) use its best efforts to register or qualify such
Registrable Stock under such other securities or blue sky laws
of such jurisdictions as any selling Holder or any underwriter
of Registrable Stock reasonably requests, and do any and all
other acts which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Stock owned by such Holder;
provided that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section
3(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process
in any such jurisdiction;
(e) use its best efforts to cause the Registrable Stock
covered by such registration statement to be registered with
or approved by such other governmental agencies or other
authorities as may be necessary by virtue of the business and
operations of the Company to enable the selling Holders
thereof to consummate the disposition of such Registrable
Stock;
(f) notify each selling Holder of such Registrable stock
and any underwriter thereof, at any time when a prospectus
relating thereto is required to be delivered under the 1933
Act (even if such time is after the period referred to in
Section 4(b)), of the happening of any event as a result of
which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein in light of the
circumstances being made not misleading, and prepare a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Stock, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to
be
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stated therein or necessary to make the statements therein in
light of the circumstances being made not misleading;
(g) make available for inspection by any selling Holder,
any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or
other agent retained by any such seller or underwriter
(collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such Inspector, as shall be
reasonably necessary to enable them to exercise their due
diligence responsibility, in connection with such registration
statement. Records or other information which the Company
determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such
Records or other information is necessary to avoid or correct
a misstatement or omission in the registration statement, or
(ii) the release of such Records or other information is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Each selling Holder shall, upon
learning that disclosure of such Records or other information
is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense,
to undertake appropriate action to prevent disclosure of the
Records or other information deemed confidential;
(h) furnish, at the request of any Requesting Holder, on
the date that such Registrable Stock is delivered to the
underwriters for sale pursuant to such registration or, if
such Registrable Stock is not being sold through underwriters,
on the date that the registration statement with respect to
such shares of Registrable Stock becomes effective, (1) a
signed opinion, dated such date, of the legal counsel
representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and if
such Registrable Stock is not being sold through underwriters
then to the Requesting Holders as to such matters as such
underwriters or the Requesting Holders, as the case may be,
may reasonably request and as would be customary in such a
transaction; and (2) a letter dated such date, from the
independent certified public accountants of the Company,
addressed to the underwriters, if any, and if such Registrable
Stock is not being sold through underwriters then to the
Requesting Holders and if such accountants refuse to deliver
such letter to such Holder, then to the Company (i) stating
that they are independent certified public accountants within
the meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements and other financial data
of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto, comply as
to form in all material respects with the applicable
accounting requirements of the 1933 Act, and (ii) covering
such other financial matters (including information as to the
period ending not more than five (5) business days prior to
the date of such letter) with respect to the registration in
respect of which such letter is being given as the Requesting
Holders may reasonably request and as would be customary in
such a transaction;
(i) enter into customary agreements (including if the
method of distribution is by means of an underwriting, an
underwriting agreement in customary form) and take such other
actions as are
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reasonably required in order to expedite or facilitate the
disposition of the Registrable Stock to be so included in the
registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, but not later than eighteen (18) months after the
effective date of the registration statement, an earnings
statement covering the period of at least twelve (12) months
beginning with the first full month after the effective date
of such registration statement; and
(k) use its best efforts to cause all such Registrable
Stock to be listed on the New York Stock Exchange and/or any
other securities exchange on which similar securities issued
by the Company are then listed or traded, if such listing or
trading is then permitted under the rules of such exchange or
system, respectively.
The Company may require each selling Holder of Registrable
Stock as to which any registration is being effected to furnish to the Company
such information regarding the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 4(f)
hereof, such Holder will forthwith discontinue disposition of Registrable Stock
pursuant to the registration statement covering such Registrable Stock until
such Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(f) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Stock current at the time of receipt of such notice.
In the event the Company shall give any such notice, the Company shall extend
the period during which such registration statement shall be maintained
effective pursuant to this Agreement (including the period referred to in
Section 4(b)) by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 4(f) hereof to and
including the date when each selling Holder of Registrable Stock covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 4(f) hereof.
5. Incidental Registration. At any time hereafter, if the
Company determines that it shall file a registration statement under the 1933
Act (other than a registration statement on a Form S-4 or S-8 or filed in
connection with an exchange offer or an offering of securities solely to the
Company's existing stockholders) on any form that also would permit the
registration of the Registrable Stock and such filing is to be on its behalf
and/or on behalf of selling holders of its securities for the general
registration of its Common Stock to be sold for cash, at each such time the
Company shall promptly give each Holder written notice of such determination
setting forth the date on which the Company proposes to file such registration
statement, which date shall be no earlier than forty (40) days from the date of
such notice, and advising each Holder of its right to have Registrable Stock
included in such registration. Upon the written request of any Holder received
by the Company no later than twenty (20) days after the date of the Company's
notice, the Company shall use its best efforts to cause to be registered under
the 1933 Act all of the Registrable Stock that each such Holder has so requested
to be registered. If, in the written opinion of the managing underwriter or
underwriters (or, in the case of a non-underwritten offering, in the written
opinion of the placement agent, or if there is none, the Company), the total
amount
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of such securities to be so registered, including such Registrable Stock,
will exceed the maximum amount of the Company's securities which can be marketed
(i) at a price reasonably related to the then current market value of such
securities, or (ii) without otherwise materially and adversely affecting the
entire offering, then the amount of Registrable Stock to be offered for the
accounts of Holders shall be reduced pro rata to the extent necessary to reduce
the total amount of securities to be included in such offering to the
recommended amount; provided, that if securities are being offered for the
account of other Persons as well as the Company, such reduction shall not
represent a greater fraction of the number of securities intended to be offered
by Holders than the fraction of similar reductions imposed on such other Persons
other than the Company over the amount of securities they intended to offer.
6. Holdback Agreement.
(a) Restrictions on Public Sale by Holder. To the
extent not inconsistent with applicable law, each Holder whose
Registrable Stock is included in a registration statement
agrees not to effect any public sale or distribution of the
issue being registered or a similar security of the Company,
or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to
Rule 144 under the 1933 Act, during the fourteen (14) days
prior to, and during the ninety (90) day period beginning on,
the effective date of such registration statement (except as
part of the registration), if and to the extent requested by
the Company in the case of a non-underwritten public offering
or if and to the extent requested by the managing underwriter
or underwriters in the case of an underwritten public
offering.
(b) Restrictions on Public Sale by the Company and
Others. The Company agrees (i) not to effect any public sale
or distribution of any securities similar to those being
registered, or any securities convertible into or exchangeable
or exercisable for such securities, during the fourteen (14)
days prior to, and during the ninety (90) day period beginning
on, the effective date of any registration statement in which
Holders are participating (except as part of such
registration), if and to the extent requested by the Holders
in the case of a non-underwritten public offering or if and to
the extent requested by the managing underwriter or
underwriters in the case of an underwritten public offering;
and (ii) that any agreement entered into after the date of
this Agreement pursuant to which the Company issues or agrees
to issue any securities convertible into or exchangeable or
exercisable for such securities (other than pursuant to an
effective registration statement) shall contain a provision
under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the
periods described in (i) above, in each case including a sale
pursuant to Rule 144 under the 1933 Act.
7. Expenses of Registration. All expenses incurred in
connection with each registration pursuant to Sections 2 and 4 of this
Agreement, excluding underwriters' discounts and commissions, but including,
without limitation, all registration, filing and qualification fees, word
processing, duplicating, printers' and accounting fees (including the expenses
of any special audits or "cold comfort" letters required by or incident to such
performance and compliance), exchange listing fees or National Association of
Securities Dealers fees, messenger and delivery expenses, all fees and expenses
of complying with securities or blue sky laws, fees and disbursements of counsel
for the Company, and the reasonable fees and disbursements of one (1) counsel
for the selling Holders shall be paid by the Company. The
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selling Holders shall bear and pay the underwriting commissions and discounts
applicable to the Registrable Stock offered for their account in connection with
any registrations, filings and qualifications made pursuant to this Agreement.
8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees
to indemnify, to the full extent permitted by law, each
Holder, its officers, directors and agents and each Person who
controls such Holder (within the meaning of the 0000 Xxx)
against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or
preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement therein (in case of a
prospectus or preliminary prospectus, in the light of the
circumstances under which they were made) not misleading. The
Company will also indemnify any underwriters of the
Registrable Stock, their officers and directors and each
Person who controls such underwriters (within the meaning of
the 0000 Xxx) to the same extent as provided above with
respect to the indemnification of the selling Holders.
(b) Indemnification by Holders. In connection with any
registration statement in which a Holder is participating,
each such Holder will furnish to the Company in writing such
information with respect to such Holder as the Company
reasonably requests for use in connection with any such
registration statement or prospectus and agrees to indemnify,
to the extent permitted by law, the Company, its directors and
officers and each Person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact or any omission or alleged
omission of a material fact required to be stated in the
registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or necessary to
make the statements therein (in the case of a prospectus or
preliminary prospectus, in the light of the circumstances
under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is
contained in any information with respect to such Holder so
furnished in writing by such Holder. Notwithstanding the
foregoing, the liability of each such Holder under this
Section 8(b) shall be limited to an amount equal to the
initial public offering price of the Registrable Stock sold by
such Holder, unless such liability arises out of or is based
on willful misconduct of such Holder.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt
written notice to the indemnifying party after the receipt by
such Person of any written notice of the commencement of any
action, suit, proceeding or investigation or threat thereof
made in writing for which such Person will claim
indemnification or contribution pursuant to this Agreement
and, unless in the reasonable judgment of such indemnified
party, a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to
such claim, permit the indemnifying party to assume the
defense of such claims with counsel reasonably satisfactory to
such indemnified party. Whether or not such defense is assumed
by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld).
Failure by such Person to
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provide said notice to the indemnifying party shall itself not
create liability except to the extent of any injury caused
thereby. No indemnifying party will 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 of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one (1) counsel with
respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between
such indemnified party and any other such indemnified parties
with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
(d) Contribution. If for any reason the indemnity provided for
in this Section 8 is unavailable to, or is insufficient to
hold harmless, an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party
on the other, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser
sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other
but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified parties 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 to state a material fact, has
been made by, or relates to information supplied by, such
indemnifying party or indemnified parties; and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in
Section 8(c), any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
If indemnification is available under this Section 8,
the indemnifying parties shall indemnify each indemnified
party to the full extent provided in Sections 8(a) and (b)
without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable
consideration provided for in this Section 8.
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9. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holders entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Rule 144. The Company covenants that it will file the
reports required to be filed by it under the 1933 Act and the Securities
Exchange Act of 1934, as amended, and the rules and regulations adopted by the
Commission thereunder; and it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Stock without registration under the 1933 Act within
the limitation of the exemptions provided by (a) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
11. Transfer of Registration Rights. The registration rights
of any Holder under this Agreement with respect to any Registrable Stock may be
transferred to any transferee of such Registrable Stock; provided that such
transfer may otherwise be effected in accordance with applicable securities
laws; provided further, that the transferring Holder shall give the Company
written notice at or prior to the time of such transfer stating the name and
address of the transferee and identifying the securities with respect to which
the rights under this Agreement are being transferred; provided further, that
such transferee shall agree in writing, in form and substance satisfactory to
the Company, to be bound as a Holder by the provisions of this Agreement; and
provided further, that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by such
transferee is restricted under the 1933 Act. Except as set forth in this Section
10, no transfer of Registrable Stock shall cause such Registrable Stock to lose
such status.
12. Mergers, Etc. The Company shall not, directly or
indirectly, enter into any merger, consolidation or reorganization in which the
Company shall not be the surviving Company unless the proposed surviving Company
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Company under this Agreement, and for that
purpose references hereunder to "Registrable Stock" shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Stock under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Section 12 shall
not apply in the event of any merger, consolidation or reorganization in which
the Company is not the surviving corporation if each Holder is entitled to
receive in exchange for its Registrable Stock consideration consisting solely of
(i) cash, (ii) securities of the acquiring corporation which may be immediately
sold to the public without registration under the 1933 Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within ninety (90) days of completion of the transaction for resale to
the public pursuant to the 1933 Act.
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13. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its
securities which is inconsistent with the rights granted to
the Holders in this Agreement.
(b) Remedies. Each Holder, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance
of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agrees to waive (to the extent
permitted by law) the defense in any action for specific
performance that a remedy of law would be adequate.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of
the Holders of at least a majority of the Registrable Stock
then outstanding affected by such amendment, modification,
supplement, waiver or departure.
(d) Successors and Assigns. Except as otherwise expressly
provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or implied, is intended to
confer upon any Person other than the parties hereto or their
respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York applicable to contracts made and to be performed
wholly within that state, without regard to the conflict of
law rules thereof.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
(g) Headings. The headings in this Agreement are used for
convenience of reference only and are not to be considered in
construing or interpreting this Agreement.
(h) Notices. Any notice required or permitted under this
Agreement shall be given in writing and shall be delivered in
person or by telecopy or by overnight courier guaranteeing no
later than second business day delivery, directed to (i) the
Company at the address set forth below its signature hereof or
(ii) to a Holder at the address therefor as set forth in the
Company's records. Any party may change its address for notice
by giving ten (10) days' advance written notice to the other
parties. Every notice or other communication hereunder shall
be deemed to have been duly given or served on the date
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on which personally delivered, or on the date actually
received, if sent by telecopy or overnight courier service,
with receipt acknowledged.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, 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 contained herein shall not be
in any way impaired thereby, it being intended that all of the
rights and privileges of the Holders shall be enforceable to
the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings other than those set forth or
referred to herein. This Agreement supersedes all prior
agreements and understandings among the parties with respect
to such subject matter.
(k) Enforceability. This Agreement shall remain in full force
and effect notwithstanding any breach or purported breach of,
or relating to, the Merger Agreement.
(l) Recitals. The recitals are hereby incorporated in this
Agreement as if fully set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
WATTAGE MONITOR INC.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: President
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
XXXXXX X. XXXXXXXX
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
/s/ Xxxxxx X. Xxxxxx
-----------------------------
XXXXXX X. XXXXXX
-17-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
/s/ Xxxxxxx X. Xxxxx
-----------------------------
XXXXXXX X. XXXXX
-18-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
RHL VENTURES LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:
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