EXHIBIT 10.16
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT made as of January 3, 2000, between
Perficient, Inc., a Delaware corporation (the "Company"), and the individual
listed on the signature page hereto (the "Holder").
WHEREAS, the Company, the Holder, Perficient Acquisition Corp. and
LoreData, Inc. are parties to that certain Agreement and Plan of Merger dated
as of December 10, 1999, as amended by Amendment to Agreement and Plan of
Merger dated as of January 3, 2000 (collectively, the "Merger Agreement"); and
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Merger Agreement, the Company has agreed to register 20%
of the shares of its common stock, par value $0.001 per share ("Common
Stock"), issued by the Company to the Holder in accordance with the terms and
subject to the conditions of the Merger Agreement.
NOW, THEREFORE, the parties have agreed as follows:
1. DEFINITIONS.
(a) The term "Commission" means the Securities and Exchange
Commission.
(b) The term "Other Securities" means at any time those
shares of Common Stock which do not constitute Primary Securities or
Registrable Securities.
(c) The term "Person" means a holder of Registrable
Securities whenever such Person has the right to acquire such Registrable
Securities (by conversion or otherwise, but disregarding any legal or other
restrictions upon the exercise of such right), whether or not such
acquisition has actually been effected.
(d) The term "Primary Securities" means at any time the
authorized but unissued shares of Common Stock or shares of Common Stock held
by the Company in its treasury.
(e) The term "Registrable Securities" means 20% of the
Common Stock issued to Holder pursuant to the Merger Agreement. As to any
particular Registrable Securities, once issued such securities shall cease to
be Registrable Securities when (a) a registration statement with respect to
the sale of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, (b) such securities may be distributed by the Holder
to the public pursuant to Rule 144 (or any successor provision) under the
Securities Act, (c) such securities shall have been otherwise transferred,
new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar
state law then in force, or (d) such securities shall have ceased to be
outstanding.
(f) The term "Registration Expenses" means all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, all registration, filing and NASD fees, all
stock exchange listing fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort letters" required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance against liabilities arising out of the public offering
of the Registrable Securities being registered and any fees and disbursements
of underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of the Holder's Registrable Securities
pursuant to the shelf registration statement and the expenses of any separate
fees for counsel for the Holder, PROVIDED THAT, in any case where
Registration Expenses are not to be borne by the Company, such expenses shall
not include salaries of the Company's personnel or general overhead expenses
of the Company, premiums or other expenses relating to liability insurance
required by underwriters of the Company or other expenses for the preparation
of financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have incurred in
any event.
(g) The term "Securities Act" means the Securities Act of
1933, as amended, or any successor law.
(h) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Merger Agreement.
2. REGISTRATION UNDER SECURITIES ACT.
(a) FILING OF SHELF REGISTRATION STATEMENT. The Company
shall cause to be filed no later than August 3, 2000 (the first anniversary
of the Company's initial public offering of Common Stock) a shelf
registration statement under the Securities Act providing for the
registration of the sale of the Registrable Securities on a continuous basis
on Form S-3 or any successor thereto providing for the sale by the Holder of
all of their Registrable Securities and will use its best efforts to have
such shelf registration statement declared effective by the Commission as
soon thereafter as practicable.
(b) EXPENSES. The Company shall pay all Registration
Expenses in connection with the registration pursuant to this Agreement.
2
3. REGISTRATION PROCEDURES.
(a) When the Company is required to effect the registration
of the Registrable Securities under the Securities Act as provided in Section
2, the Company shall, as expeditiously as possible (and in all events subject
to Section 2):
(i) prepare and file with the Commission the
requisite registration statement to effect such registration (including such
audited financial statements as may be required by the Securities Act or the
rules and regulations promulgated thereunder) and thereafter cause such
registration statement to become and remain effective, PROVIDED, HOWEVER,
that before filing such registration statement or any amendments thereto, the
Company will furnish to the Holder copies of all such documents proposed to
be filed, which documents will be subject to its review and approval in
accordance with Section 3(b), PROVIDED, HOWEVER, that the Company shall not
be liable for any delay in filing the registration statement or any amendment
thereto as a result of the review and approval by the Holder of the contents
of such registration statement or amendment;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the sooner of (i) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the Holder set forth in such registration statement
or (ii) six months from the date of effectiveness of the registration
statement;
(iii) furnish to the Holder (or underwriter, if
any, of the securities being sold by the Holder) such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents as, the
Holder (and each such underwriter, if any) may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
(iv) use its best efforts to register or qualify
all Registrable Securities and other securities covered by such registration
statement under such other securities laws or blue sky laws of such
jurisdictions as the Holder (and any underwriter of the Registrable
Securities being sold) shall reasonably request, to keep such registrations
or qualifications in effect for so long as such registration statement
remains in effect, and take any other action which may be necessary or
advisable to enable the Holder (and underwriter, if any) to consummate the
disposition in such jurisdictions of the Registrable Securities except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this
3
subdivision (iv) be obligated to be so qualified or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Holder to consummate the disposition of such
Registrable Securities;
(vi) notify the Holder (and the managing
underwriter or underwriters, if any) promptly and confirm such advice in
writing promptly thereafter:
(A) when the registration statement, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and, with respect to
the registration statement or any post-effective amendment thereto, when the
same has become effective:
(B) of any request by the Commission for
amendments or supplements to the registration statement or the prospectus or
for additional information;
(C) of the issuance by the Commission of
any stop order suspending the effectiveness of the registration statement or
the initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations
and warranties of the Company cease to be true and correct;
(E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose;
(vii) notify the Holder, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and at the request of the Holder promptly prepare and furnish to
the Holder (and each underwriter, if any) a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or 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 then existing;
(viii) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
4
(ix) otherwise use reasonable efforts to comply
with all applicable rules and regulations of the Commission and will furnish
to the Holder at least five business days prior to the filing thereof a copy
of any amendment or supplement to such registration statement or prospectus
and shall not file any thereof to which the Holder shall have reasonably
objected on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(x) make available for inspection by the Holder,
any underwriter participating in any disposition pursuant to the registration
statement and any attorney or accountant retained by the Holder or such
underwriter (each, an "Inspector"), all financial and other records,
pertinent corporate documents and properties of the Company (the "Records"),
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection with
such registration in order to permit a reasonable investigation within the
meaning of Section 11 of the Securities Act;
(xi) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective
date of such registration statement;
(xii) enter into such agreements and take such
other actions as the Holder shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xiii) use its best efforts to list all
Registrable Securities covered by such registration statement on any
securities exchange on which any of the securities of the same class as the
Registrable Securities are then listed; and
(xiv) use its best efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective date of
the registration statement.
(b) The Holder agrees that, upon receipt of any notice from
the Company of the occurrence of any event of the kind described in
subdivision (vii) of this Section, the Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until the Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(vii) of this Section.
(c) Notwithstanding anything to the contrary in this
Agreement, the Holder agrees that in the event of a private or public
offering of Common Stock, the Holder shall be subject to the same
restrictions on transferability or lock-up of shares of Common Stock as the
underwriter of any such offering or any officer of the Company shall require
of the executive officers of the Company.
5
4. INDEMNIFICATION BY THE COMPANY.
(a) GENERAL RIGHTS.
(i) In the event of any registration of any
securities of the Company under the Securities Act, the Company will, and
hereby does agree to, indemnify and hold harmless in the case of any
registration statement of the Company, the Holder and any underwriter
including the respective directors, officers, agents and controlling persons
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), if any, of the Holder and such underwriters against any
losses, claims, damages, liabilities or expense, joint or several, to which
the Holder (or any underwriter) or any such director, officer, agent or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise
out of or based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which securities
were registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, 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 the Company will reimburse the Holder
(or any underwriter) and each such director, officer, agent and controlling
person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding, PROVIDED THAT the Company shall not be
liable in such case to the extent that any such loss, claim, damage,
liability or action or proceeding in respect thereof or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
exclusively in reliance upon and in conformity with information furnished to
the Company through an instrument duly executed by the Holder, specifically
stating that it is for use in the preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder (or underwriter, if any) or any such director, officer,
agent or controlling person and shall survive the transfer of such securities
by the Holder.
(ii) The Holder will, and hereby does agree to
indemnify and hold harmless the Company and the directors, officers, agents
and controlling persons, if any, of the Company against any losses, claims,
damages, liabilities or expense to which the Company and the directors,
officers, agents and controlling persons, if any, of the Company may become
subject under the Securities Act insofar as such losses, claims, damages,
liabilities or expense arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which the Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, 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, in
each case to the extent (and only to the extent) that such loss, claim,
damage, liability or expense occurs in exclusive reliance upon and in
conformity
6
with written information furnished by the Holder expressly for use in
connection with such registration; provided that the Holder shall be liable
under this paragraph for only that amount of losses, claims, damages,
liabilities or expense as does not exceed the proceeds to the Holder as a
result of the sale of Registrable Securities pursuant to such registration.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer, agent or controlling person.
(b) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section,
such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, PROVIDED THAT the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section,
except to the extent that the indemnifying party is actually prejudiced in a
material manner by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that the indemnifying party may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement of any such
action 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, or a covenant not to xxx, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(c) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section (with appropriate
modifications) shall be given by the Company and the Holder with respect to
any required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(d) INDEMNIFICATION PAYMENTS. The indemnification required
by this Section shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(e) CONTRIBUTION. If the indemnification provided for in
the preceding subdivisions of this Section is unavailable to an indemnified
party in respect of any loss, claim, damage, liability or expense referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
7
indemnified party as a result of such loss, claim, damage, liability or
expense (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Holder or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Holder or
underwriter, as the case may be, on the other in connection with the
statements or omissions which resulted in such loss, claim, damage, liability
or expense, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Holder or
underwriter, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company, by the Holder or by the underwriter and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, PROVIDED THAT
the foregoing contribution agreement shall not inure to the benefit of any
indemnified party if indemnification would be unavailable to such indemnified
party by reason of the provisions contained in the first sentence of
subdivision (a) of this Section and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (e) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section had been available under the circumstances.
Notwithstanding the provisions of this subdivision (e), neither the Holder
nor the underwriter shall be required to contribute any amount in excess of
the amount by which (i) in the case of the Holder, the net proceeds received
by the Holder from the sale of Registrable Securities or (ii) in the case of
an underwriter, the total price at which the Registrable Securities purchased
by it and distributed to the public were offered by the public exceeds, in
either such case, the amount of any damages that the Holder or underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11 the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
5. CERTAIN RIGHTS OF THE HOLDER.
The Company will not file any registration statement under
the Securities Act, unless it shall first have given to the Holder, at least
30 days prior written notice thereof. If any such registration statement
refers to the Holder by name or otherwise as the holder of any securities of
the Company, then the Holder shall have the right within such 30 day period
to require (a) the insertion therein of language, in form and substance
satisfactory to the Holder to the effect that the holding by the Holder of
such securities does not necessarily make the Holder a "controlling person"
of the Company within the meaning of the Securities Act and is not to be
construed as a recommendation by the Holder of the investment quality of the
Company's debt or equity securities covered thereby and that the Holder will
assist in meeting any future financial requirements of the Company or (b) in
the event that such reference to the Holder by name or otherwise is not
required by the Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to the Holder. If the Holder does
not respond within such 30 day period, the Company may proceed with the
filing.
8
6. MISCELLANEOUS.
(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 Holder of Registrable Securities
in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not take any action, or permit any change to occur, with respect
to its securities which would adversely affect the ability of the Holder to
include Registrable Securities in a registration statement undertaken
pursuant to this Agreement or which would adversely affect the ability of the
Holder to sell such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, if and only if the Company has obtained the written
consent of the Holder.
(d) SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Holder. All covenants and agreements in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of,
and enforceable by, any subsequent holder of Registrable Securities.
(e) JURISDICTION AND GOVERNING LAW. The Company and the
Holder each hereby consent to personal jurisdiction in any action brought
with respect to this Agreement and the transactions contemplated hereunder in
any federal or state court within the State of New York. This Agreement shall
be governed by and construed in accordance with the law of the State of New
York without giving effect to conflicts of law principles thereof.
(f) CONSTRUCTION. Section headings of this Agreement are
for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
(g) SEVERABILITY. In the event that any provision hereof
would, under applicable law, be invalid or enforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid
and enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
9
(h) JOINT AGREEMENT. The provisions of this Agreement and
each document delivered pursuant hereto shall be deemed to be the joint
effort of each of the parties hereto and shall not be construed more severely
or strictly against any one or more parties.
(i) NOTICES. Except as otherwise provided in this
Agreement, all notices, requests and other communications shall be in writing
and shall be given to the Holder addressed to it in the manner set forth in
the Merger Agreement or at such other address as the Holder shall have
furnished to the Company in writing, and to the Company, to the attention of
its Chief Executive Officer, or at such other address, or to the attention of
such other officer, as the Company shall have furnished to the Holder. Each
such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (ii) if given by any
other means (including, without limitation, by air courier), when delivered
at the address specified above, PROVIDED that any such notice, request or
communication shall not be effective until received.
(j) COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
(k) UNDERWRITER HOLDBACK. The Holder agrees that if the
Company proposes to offer securities pursuant to a Registration Statement
under the Securities Act pursuant to a firm commitment underwritten public
offering, then the Holder will, if requested by the Underwriter of such
proposed public offering, enter into such agreement that may be requested,
agreeing not to sell, pledge, hypothecate or otherwise dispose of any
Registrable Securities for the same period of time that is requested of
officers, directors and principal stockholders of the Company.
(1) SPECIFIC PERFORMANCE. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform
any of its other obligations hereunder, and accordingly agree that each
party, in addition to any other remedy to which it may be entitled at law or
in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms and conditions of this Agreement in any court of the United States or
any State thereof having jurisdiction. Any remedy hereunder is subject to
certain equitable defenses and to the discretion of the court before which
any proceedings therefor may be brought.
(m) ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties and understanding between the Company and the
Holder relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter.
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PERFICIENT, INC.
By: /s/ Xxxx X. XxXxxxxx
------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
HOLDER
/s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx, individually
11
