EXHIBIT 10.2
THE SANTA XXXX OPERATION, INC.
REGISTRATION RIGHTS AND STOCK RESTRICTION AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as of
September 11, 2000 (the "Effective Date"), by and among The Santa Xxxx
Operation, Inc., a California corporation (the "Company"), and the individual
and/or entity set forth in the signature block hereto below (the "Investors").
RECITALS
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A. The Company and the Investors are parties to the Common Stock and Warrant
Purchase Agreement dated as of September 11, 2000 (together with the exhibits
and schedules thereto, the "Purchase Agreement") and the Stock Warrant Purchase
agreement dated as of September 11, 2000 (collectively with the Agreement, the
"Transaction Agreements") pursuant to which Investors are purchasing, and the
Company is selling, the Common Stock of the Company and Warrants for the
purchase of additional shares of the Common Stock of the Company and the Common
Stock of Caldera, Inc., held by the Company.
All capitalized terms not defined herein shall have the meanings set forth in
the Merger Agreement, unless otherwise referred to another agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Black-Out Period" means any period during which executive officers and
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directors of the Company are generally prohibited from engaging in trades in the
Company's securities pursuant to the Company's Xxxxxxx Xxxxxxx Policy,
including, without limitation, black-out periods for management related to
quarterly reports of financial results of the Company.
"Commission" means the Securities and Exchange Commission or any other Federal
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agency at the time administering the Securities Act.
"Effective Date" shall mean the date on which the Transaction Agreements become
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effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
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similar Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Family Transfer" means a transfer to a spouse, lineal descendent, or a trust
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for the benefit of
transferor, spouse or lineal descendent, provided that in the case of each such
transfer, the transfer is made in compliance with applicable federal and state
securities law and the transferee agrees to be bound by the terms of this
Agreement.
"Holder" means the Investors, for so long as the Investors hold any Registrable
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Securities, or any person holding Registrable Securities to whom the rights
under this Agreement have been transferred in accordance with Section 9 hereof.
"Xxxxxxx Xxxxxxx Policy" means the policy adopted by the Company's Board of
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Directors, as such may be amended from time to time, relating to transactions in
the Company's securities by the Company's executive officers and directors.
"Permitted Window" means the period during which a Holder entitled to sell
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Registrable Securities pursuant to a registration statement under Section 4 of
this Agreement shall be permitted to sell Registrable Securities pursuant to
such a registration. Except as otherwise set forth in this Agreement, a
Permitted Window shall (i) commence upon the tenth business day following
receipt by the Company of a written notice from a Holder to the Company that
such Holder intends to sell Shares pursuant to such registration statement, or
such earlier date as the Company may agree to (or, if such date falls within a
Blackout Period, then upon the termination of such Blackout Period), and shall
(ii) terminate upon the commencement of the next occurring Black-Out Period.
"Registrable Securities" means the Shares of the Company Common Stock and the
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shares of Caldera, Inc. Common Stock held by the Company and any Common Stock of
the Company issued or issuable in respect thereof upon any conversion, stock
split, stock dividend, recapitalization, merger or other reorganization;
provided, however, that securities shall only be treated as Registrable
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Securities if and so long as they have not been registered or sold to or through
a broker or dealer or underwriter in a public distribution or a public
securities transaction.
"Register," "registered" and "registration" refer to a registration effected by
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preparing and filing a registration statement in compliance with the Securities
Act, and the declaration or ordering of the effectiveness of such registration
statement.
"Registration Expenses" means all expenses, except as otherwise stated below,
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incurred by the Company in complying with Sections 4 and 5 hereof, including
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Restricted Securities" means the securities of the Company required to bear a
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legend as described in Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any similar
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Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
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"Selling Expenses" means all underwriting discounts, selling commissions and
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stock transfer taxes applicable to the securities registered by the Holders and
all fees and disbursements of counsel for any Holder.
2. Restrictions on Transferability.
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(a) The Registrable Securities and any other securities issued in respect of
such securities upon any stock split, stock dividend, recapitalization,
merger or other reorganization, shall not be sold, assigned, transferred or
pledged except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act.
(b) Restrictive Legend. Each certificate representing the Shares or any other
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securities issued in respect of such securities upon any stock split, stock
dividend, recapitalization, merger or other reorganization shall be stamped
or otherwise imprinted with legends restricting the transferability
thereof, in substantially the form set forth below:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
SUCH SHARES GENERALLY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER PURSUANT TO AN AGREEMENT BETWEEN THE HOLDER AND THE COMPANY.
Each Holder consents to the Company making a notation on its records and giving
instructions to any transfer agent of its capital stock in order to implement
the restrictions on transfer established in this Agreement and the Merger
Agreement.
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3. Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 3.Without in any way limiting the
immediately preceding sentence or the provisions of Section 2, no sale,
assignment, transfer or pledge (other than (i) a sale made pursuant to a
registration statement filed under the Securities Act and declared effective by
the Commission or (ii) a sale made in accordance with the applicable provisions
of Rule 144 and Rule 145) of Restricted Securities shall be made by any holder
thereof to any person unless such person shall first agree in writing to be
bound by the restrictions of this Agreement, including without limitation this
Section 3. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Company of such holder's intention to effect such
transfer, sale, assignment or pledge. Each such notice shall describe the
manner and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and, if requested by the Company, the holder shall also
provide, at such holder's expense, a written opinion of legal counsel (who shall
be, and whose legal opinion shall be, reasonably satisfactory to the Company)
addressed to the Company, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act and under applicable state securities laws and regulations. Upon delivery
to the Company of such notice and, if required, such opinion, the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of such notice. The Company agrees that it shall
not request such an opinion of counsel with respect to (i) a transfer not
involving a change in beneficial ownership, (ii) a transaction involving the
distribution without consideration of Restricted Securities by the holder to its
constituent equity holders in proportion to their equity holdings in the holder
or (iii) a transaction involving the transfer without consideration of
Restricted Securities by an individual holder during such holder's lifetime by
way of gift or on death by will or intestacy. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 2 above, except that such certificate shall not bear such
restrictive legend if, in the opinion of counsel for such holder and counsel for
the Company, such legend is not required in order to establish or ensure
compliance with any provision of the Securities Act.
4. Registration on Form S-3.
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(a) Registration. The Company shall use commercially reasonable efforts to
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cause a registration statement on Form S-3 covering all Registrable Securities
to be filed no later than the sixty (60) days following the date of this
Agreement. The Company shall use commercially reasonable efforts to cause such
registration statement to become effective, and to keep such registration
statement effective until the second anniversary of the date of this Agreement,
or such earlier date upon which no Holder holds any Registrable Securities.
(b) Limitations on Registration and Sale of Registrable Securities.
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Notwithstanding anything in this Agreement to the contrary, the Company's
obligations and the Holders' rights under this Section 4 are subject to the
limitations and qualifications set forth below, which may be waived in writing
by the Company.
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(i) The Holders will sell Registrable Securities pursuant to a
registration effected hereunder only during a Permitted Window.
(ii) If the Company furnishes to the Holders a certificate signed by the
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
for a Form S-3 registration to be effected, or a Permitted Window to be in
effect, due to (A) the existence of a material development or potential material
development involving the Company which the Company would be obligated to
disclose in the prospectus contained in the Form S-3 registration statement,
which disclosure would in the good faith judgment of the Board of Directors be
premature or otherwise inadvisable, (B) the existence of other facts or
circumstances as a result of which the prospectus contained or to be contained
in the Form S-3 registration statement includes or would include an untrue
statement of a material fact or omits or would omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made or then
existing or (C) the Company's bona fide intention to effect the filing of a
registration statement with the Commission within sixty (60) days of the receipt
of a notice from a Holder that it intends to sell Registrable Securities during
a Permitted Window, the Company may defer the filing of the Form S-3
registration statement or delay the commencement of a Permitted Window or may
effect an early termination of a Permitted Window that has commenced, as the
case may be.
(iii) The obligations of the Company hereunder are conditioned upon its
being eligible to register its securities on Form S-3 at the time any such
registration is otherwise required hereunder; provided, however, that if the
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Company ceases to be eligible to register its securities on Form S-3 at any time
during which any Holder would otherwise be entitled to sell Registrable
Securities pursuant to a registration in accordance with the terms of this
Agreement, the Company shall use its commercially reasonable efforts to become
eligible to register its securities on Form S-3 as soon as practicable.
(iv) At any time that the Company is obligated under this Agreement to
permit the Holders to sell Registrable Securities pursuant to a registration
statement on Form S-3, the Company may, instead of maintaining an effective
registration statement on Form S-3 for the benefit of the Holders, include such
Registrable Securities in a registration effected for the benefit of the Company
and/or other selling stockholders.
(c) Registration Procedures. In connection with any registration statement
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made pursuant to Section 4(b)(iv), the Company shall take the actions set
forth below.
(i) Prior to filing any registration statement, prospectus, amendment or
supplement with the Commission in connection with any registration hereunder,
the Company shall furnish to one counsel selected by the Holders of a majority
of the Registrable Securities copies of such documents.
(ii) The Company shall notify each Holder of any stop order issued or
threatened by the Commission and will take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
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(iii) The Company shall comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by a registration
statement filed pursuant to this Agreement with respect to the disposition of
all Registrable Securities covered by such registration statement in accordance
with the intended methods of disposition by the Holders as set forth in such
registration statement.
(iv) The Company shall furnish to each Holder and each underwriter, if
any, of Registrable Securities covered by a registration statement filed
pursuant to this Agreement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such registration statement (including
each preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as a selling Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder.
(v) The Company shall use its best efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of each State of
the United States of America as any of the Holders or underwriters, if any, of
the Registrable Securities covered by a registration statement filed hereunder
reasonably requests, and shall do any and all other acts and things which may be
reasonably necessary or advisable to enable each selling Holder and each
underwriter, if any, to consummate the disposition in such States of the
Registrable Securities owned by such selling Holders; provided that the Company
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shall not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection (v), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction.
(vi) The Company shall immediately notify each Holder entitled to sell
Registrable Securities during a Permitted Window of the happening of any event
which comes to the Company's attention if, as a result of such event, the
prospectus included in the registration statement filed under this Agreement
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and the Company shall promptly
prepare and furnish to each Holder and file with the Commission a supplement or
amendment to such prospectus so that such prospectus will no longer contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(vii) The Company shall take all such other reasonable and customary
actions as each Holder may reasonably request in order to expedite or facilitate
the disposition of the Registrable Securities in accordance with the terms of
this Agreement.
(viii) The Company shall make available for inspection by the Holders, any
underwriter participating in any disposition pursuant to a registration
statement filed under this Agreement, and any attorney, accountant or other
agent retained by such Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, as
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such person may reasonably request for the purpose of confirming that such
registration statement does not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, provided
that the Company obtains reasonably satisfactory assurances that such
information will be used solely for such purpose and will be held in confidence
(except to the extent that it is included in the registration statement). The
Company shall cause the officers, directors and employees of the Company and
each of its subsidiaries to supply such information and respond to such
inquiries as any Holder or underwriter may reasonably request or make for the
purpose of confirming that such registration statement does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, provided that the Company obtains reasonably
satisfactory assurances that such information will be used solely for such
purpose and will be held in confidence (except to the extent that it is included
in the registration statement).
(ix) The Company shall otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period (which may begin with the first fiscal
quarter ending after the effective date of the registration statement) of at
least twelve months after the effective date of the registration statement (as
the term "effective date" is defined in Rule 158(c) under the Securities Act),
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
5. Company Registration.
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(a) Notice of Registration. If at any time or from time to time, the
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Company shall determine to register any of its securities for its own account
(including, without limitation, all registrations in which other selling
shareholders are permitted to participate), other than (i) in connection with
the Company's registration on Form S-4, (ii) a registration relating solely to
employee benefit plans, or (iii) a registration relating solely to a Commission
Rule 145 transaction, (the "Company Registration") the Company will:
(A) promptly give to each Holder written notice thereof; and
(B) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, the Registrable Securities specified in a written request or requests,
made within 20 days after receipt of such written notice from the Company, by
any Holder; provided however, that, if the Company is advised by the managing
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underwriters of the offering that market conditions so require the Company may
in its sole discretion reduce the number of Registrable Securities of the
Holders permitted to be registered to the pro rata portion of the Registrable
Securities held by each Holder who gives proper written request.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders. In
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such event the right of any Holder to registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. If any Holder, or other holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 90 days after the effective date
of the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
(c) Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration.
6. Expenses of Registration. All Registration Expenses incurred in connection
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with the Company's obligations hereunder shall be borne by the Company. All
Selling Expenses relating to securities proposed to be registered hereunder and
all other registration expenses shall be borne by the Holders of such securities
pro rata on the basis of the number of shares proposed to be sold by each of
them during the applicable Permitted Window; provided however that if the
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Company pays the Selling Expenses or Registration Expenses of other Investors of
the Company in any registration in which the Holders participate, then the
Company shall pay the Selling Expenses and Registration Expenses of Holders to
the same extent and in pro rata proportion to the Selling Expenses and
Registration Expenses paid by the Company with respect to the other Investors.
7. Indemnification.
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(a) The Company will indemnify each Holder, each of its officers and directors
and partners, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration has been
effected pursuant to this Agreement, against all expenses, claims, losses,
damages or liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of the Securities Act, the Exchange
Act, state securities law or any rule or regulation promulgated under the such
laws applicable to the Company in connection with any such registration, and the
Company will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, for any legal and any other
expenses reasonably incurred, as such expenses are incurred; in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company that the Company will not be liable in any
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case to the extent that
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any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder or controlling person, and
stated to be specifically for use therein; and provided further, that the
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foregoing indemnity Agreement is subject to the condition that, insofar as it
relates to any such untrue statement, alleged untrue statement, omission or
alleged omission made in a preliminary prospectus, such indemnity agreement
shall not inure to the benefit of any person, if a copy of the final prospectus
or an amended or supplemented prospectus, as applicable, was not furnished to
the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act, and if the final prospectus
or the amended or supplemented prospectus, as applicable, would have cured the
defect giving rise to the loss, liability, claim or damage. In no event,
however, shall the Company have any indemnification obligation to the extent
that the expenses, claims, losses, damages or liabilities as to which
indemnification is sought are in connection with an offer or sale made by a
person other than the Company in violation of the terms of this Agreement (a
"Violation").
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which a registration hereunder is effected,
indemnify the Company, each of its directors and officers, each person who
controls the Company within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on (i) a Violation by such Holder or (ii) any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers or control persons for any legal or any other expenses reasonably
incurred, as such expenses are incurred, in connection with investigating or
defending any such claim, loss, damage, liability or action, but, in the case of
clause (ii) above, only to the extent that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with information furnished to the Company by such Holder.
Notwithstanding the foregoing, the liability of each Holder under this
subsection 7(b) shall be limited in an amount equal to the initial public
offering price of the shares sold by such Holder, unless such liability arises
out of or is based on a Violation or willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as
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provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action and
provided further, that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or there are separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party (whose
consent shall not be unreasonably withheld), consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation.
8. Information by Holder. The Holder or Holders of Registrable Securities
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included in any registration hereunder shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration
referred to in this Agreement.
9. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration the Company agrees to
use all reasonable efforts, at any time after the second anniversary of the
Effective Date, to:
(a) Make and keep public information available, as those terms are understood
and defined in Rule 144 under the Securities Act;
(b) File with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(c) So long as a Holder owns any Restricted Securities, to furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
10. Transfer of Registration Rights. The rights to cause the Company to
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register securities granted to Holders under Section 4 may be assigned to a
transferee or assignee reasonably acceptable to the Company in connection with
any transfer or assignment of Registrable Securities by the Holder, provided
that (i) such transfer is otherwise effected in accordance with applicable
securities laws and the terms of this Agreement, (ii) such assignee or
transferee acquires at least 100,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends, stock combinations and the like),
(iii) written notice is promptly given to the Company and (iv) such transferee
agrees to be bound by the provisions of this Agreement. Notwithstanding the
foregoing, the rights to cause the Company to register securities may be
assigned without compliance with item (ii) above to (x) any
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constituent equity holder of a Holder which is a partnership, limited liability
company, or a corporation or (y) a family member or trust for the benefit of a
Holder who is an individual, or a trust for the benefit of a family member of
such a Holder.
11. Amendment. Except as otherwise provided above, any provision of this
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Agreement may be amended or 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 each of the
Holders.
12. Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of California, without regard to conflict of laws provisions.
13. Entire Agreement. This Agreement constitutes the full and entire
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understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
14. Notices, etc. All notices and other communications required or permitted
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hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by facsimile transmission, by hand
or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth below such Holder's
signature on this Agreement, or at such other address as such Holder shall have
furnished to the Company.
(b) if to the Company, to:
The Santa Xxxx Operation, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Law & Corporate Affairs
or at such other address as the Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given when delivered if delivered
personally or by facsimile transmission, or, if sent by mail, at the earlier of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
15. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first
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written above.
"THE COMPANY"
The Santa Xxxx Operation, Inc.,
a California corporation
By:________________________________
Title:_____________________________
"THE INVESTOR"
By:________________________________
Title:_____________________________
Address:___________________________
___________________________
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