EXECUTION COPY
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT ("Agreement"),
is made as of February 1, 2002, by and among Infocrossing, Inc. (f/k/a Computer
Outsourcing Services, Inc.), a Delaware corporation, (the "Company"), DB Capital
Investors, L.P. (the "Initial XX Xxxxxx"), Xxxxxxx Capital Partners V, L.P.,
Sandler Capital Partners V FTE, L.P., Sandler Technology Partners, L.P. (f/k/a
Sandler Internet Partners, L.P.), Sandler Co-Investment Partners, L.P., Price
Family Limited Partners and Xxxxxx, X.X. (each an "Initial Sandler Holder" and,
collectively, the "Initial Sandler Holders"), Xxxx Xxxxxxxx, a resident of the
State of New York ("Lonstein") and Xxxxxx Xxxxxxx Strategic Partners Fund, L.P.,
Strategic Associates, L.P., Camden Partners Strategic Fund II-A, L.P., and
Camden Partners Strategic Fund II-B, L.P. (each an "Initial Camden Holder" and,
collectively, the "Initial Camden Holders").
W I T N E S S E T H:
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WHEREAS, the Company and the Initial XX Xxxxxx and the Initial Sandler
Holders have entered into, or have been assigned an interest in, a Securities
Purchase Agreement dated April 7, 2000 (the "Securities Purchase Agreement");
and
WHEREAS, pursuant to the terms of the Securities Purchase Agreement,
the Initial XX Xxxxxx and the Initial Sandler Holders have collectively
purchased, or have been assigned an interest in, (x) 157,377 shares (the
"Shares") of the 8% Series A Cumulative Convertible Participating Preferred
Stock of the Company (the "Series A Preferred Stock"), which such Shares are
initially convertible into 1,573,770 shares of the Common Stock, par value $.01
per share, of the Company ("Common Stock"), subject to adjustment in accordance
with the terms of the Series A Preferred Stock, and (y) Series A Common Stock
Warrants (the "Warrants") to purchase, initially 2,531,926 shares of Common
Stock, subject to adjustment in accordance with the terms of the Warrants; and
WHEREAS, Lonstein is the holder of 1,673,349 shares of Common Stock
(the "Lonstein Shares"); and
WHEREAS, Lonstein has granted the Initial XX Xxxxxx and the Initial
Sandler Holders an option (the "Option") to purchase up to 750,000 shares of
Common Stock currently owned by Lonstein; and
WHEREAS, on May 10, 2000, the Company, the Initial XX Xxxxxx, the
Initial Sandler Holders and Lonstein entered into a Registration Rights
Agreement (the "Initial Registration Rights Agreement") pursuant to which each
of them was granted certain registration rights; and
WHEREAS, the Company has entered into a Securities Purchase Agreement
dated as of the date hereof (the "Camden Purchase Agreement"), and a Warrant
Agreement dated as of the date hereof (the "Camden Warrant Agreement") with the
Initial Camden Holders; and
WHEREAS, pursuant to the terms of the Camden Purchase Agreement, the
Company shall have authorized for sale, issue and delivery to the Initial Camden
Holders an aggregate of (x) $10.0 million principal amount of Senior
Subordinated Debentures due 2005 (the "Camden Debentures") and (y) warrants to
purchase, initially 2,000,000 shares of Common Stock (the "Initial Camden
Warrants") subject to adjustment in accordance with the terms of the Camden
Warrants; and
WHEREAS, pursuant to the terms of the Camden Warrant Agreement and the
Camden Debentures, the Company may issue additional warrants to purchase Common
Stock (the "Additional Camden Warrants") in lieu of cash payment of interest
thereon; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Camden Purchase Agreement that the parties hereto execute
and deliver this Agreement; and
WHEREAS, the Company, the Initial XX Xxxxxx, the Initial Sandler
Holders, Lonstein and the Intitial Camden Holders wish to amend and restate the
Initial Registration Rights Agreement as set forth below; and
WHEREAS, this Agreement replaces in its entirety the Initial
Registration Rights Agreement.
NOW THEREFORE, in consideration of the premises, mutual promises and
covenants contained in this Agreement and intending to be legally bound, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Terms defined in the Securities Purchase
Agreement are used herein as therein defined. In addition, the following terms,
as used herein, have the following meanings:
"Additional Camden Warrants" has the meaning set forth in the eighth
recital.
"Agreement" has the meaning set forth in the preamble.
"Camden Debentures" has the meaning set forth in the seventh recital.
"Camden Holders" means the Initial Camden Holders, their direct and
indirect successors and assigns and any direct or indirect transferee of any
Registrable Securities initially held by any Initial Camden Holder.
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"Camden Purchase Agreement" has the meaning set forth in the sixth
recital.
"Camden Warrant Agreement" has the meaning set forth in the sixth
recital.
"Camden Warrants" means all Initial Camden Warrants and all Additional
Camden Warrants.
"Camden Warrant Shares" means all shares of Common Stock or other
securities issued upon the exercise of Camden Warrants.
"Closing Date" means February 1, 2002.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the second recital.
"Company" has the meaning set forth in the preamble.
"Conversion Shares" means all shares of Common Stock or other
securities issued upon the conversion of the Series A Preferred Stock in
accordance with its terms.
"Demand Registration" means a registration under the Securities Act
requested in accordance with Section 2.01.
"DB Holders" means the Initial XX Xxxxxx, its direct and indirect
successors and assigns and any direct or indirect transferee of any Registrable
Securities initially held by the Initial XX Xxxxxx.
"Excluded Holders" has the meaning set forth in Section 2.01(f).
"Holders" shall mean the DB Holders, the Sandler Holders, the Lonstein
Holders and the Camden Holders.
"Indemnified Party" has the meaning set forth in Section 4.03.
"Indemnifying Party" has the meaning set forth in Section 4.03.
"Initial Camden Holder" and "Initial Camden Holders" have the meanings
set forth in the preamble.
"Initial Camden Warrants" has the meaning set forth in the seventh
recital.
"Initial XX Xxxxxx" has the meaning set forth in the preamble.
"Initial Sandler Holder" and "Initial Sandler Holders" have the
meanings set forth in the preamble.
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"Initial Holders" means the Initial XX Xxxxxx, the Initial Sandler
Holders and the Initial Camden Holders.
"Initial Registration Rights Agreement" shall have the meaning set
forth in the fifth recital.
"Lonstein" has the meaning set forth in the preamble.
"Lonstein Holders" means Lonstein, his direct and indirect heirs,
successors and assigns and any direct or indirect transferee of any Registrable
Securities initially held by Lonstein.
"Lonstein Shares" has the meaning set forth in the third recital.
"Losses" has the meaning set forth in Section 4.01.
"Material Adverse Effect" has the meaning set forth in Section
2.01(f).
"Option" has the meaning set forth in the fourth recital.
"Option Shares" means any shares of Common Stock or other securities
issued upon the exercise of the Option.
"Original Closing Date" means May 10, 2000.
"Person" means any individual, partnership, joint venture,
corporation, limited liability company, limited liability partnership, trust
incorporated organization, government, or agency or political subdivision
thereof, or other entity.
"Piggyback Registration" has the meaning set forth in Section 2.02.
"Registrable Camden Securities" means (a) any Registrable Common Stock
acquired by any Camden Holder upon the exercise of any Registrable Camden
Warrants and (b) any securities of the Company or any successor entity into
which Registrable Common Stock or Registrable Camden Warrants may hereafter be
reclassified, converted or changed. As to any particular Registrable Camden
Securities, such securities shall cease to be Registrable Camden Securities upon
the earlier to occur of (i) 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 under such registration statement in
accordance with the plan of distribution set forth therein; (ii) such securities
shall have been transferred pursuant to Rule 144; (iii) such securities shall
have been otherwise transferred or disposed of, and new certificates therefor
not bearing a legend restricting further transfer shall have been delivered by
the Company, and subsequent transfer of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force, or (iv) such securities shall have ceased to be outstanding.
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"Registrable Camden Warrants" means the Camden Warrants, together with
any additional shares of Common Stock or other securities issued in respect
thereof (other than any Camden Warrant Shares) in connection with any stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar event with respect to such Camden Warrants.
"Registrable Common Stock" means the Conversion Shares, the Warrant
Shares, the Option Shares and the Camden Warrant Shares, in each case, together
with any additional shares of Common Stock or other securities issued in respect
thereof in connection with any stock split, stock dividend, merger,
consolidation, reclassification, recapitalization or similar event with respect
to such shares of Common Stock.
"Registrable DB Securities" means (a) any Registrable Series A
Preferred Stock purchased by any XX Xxxxxx on the Original Closing Date or
thereafter acquired, (b) any Registrable Common Stock acquired by any XX Xxxxxx
upon the conversion of any Registrable Series A Preferred Stock, the exercise of
any Registrable Warrants or the exercise of the Option, (c) any Registrable
Warrants purchased by any XX Xxxxxx on the Original Closing Date or thereafter
acquired, and (d) any securities of the Company or any successor entity into
which Registrable Common Stock, Registrable Warrants or Registrable Series A
Preferred Stock may hereafter be reclassified, converted or changed. As to any
particular Registrable DB Securities, such securities shall cease to be
Registrable DB Securities upon the earlier to occur of (i) 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 under such registration statement in accordance with the plan of distribution
set forth therein; (ii) such securities shall have been transferred pursuant to
Rule 144; (iii) such securities shall have been otherwise transferred or
disposed of, and new certificates therefor not bearing a legend restricting
further transfer shall have been delivered by the Company, and subsequent
transfer of such securities shall not require registration or qualification
under the Securities Act or any similar state law then in force, or (iv) such
securities shall have ceased to be outstanding.
"Registrable Lonstein Securities" means the Lonstein Shares (other
than any Lonstein Shares subject to the Option), together with any additional
shares of Common Stock or other securities issued in respect thereof in
connection with any stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or similar event with respect to such shares
of Common Stock. As to any particular Registrable Lonstein Securities, such
securities shall cease to be Registrable Lonstein Securities upon the earlier to
occur of (i) 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 under such registration statement in
accordance with the plan of distribution set forth therein; (ii) such securities
shall have been transferred pursuant to Rule 144; (iii) such securities shall
have been otherwise transferred or disposed of, and new certificates therefor
not bearing a legend restricting further transfer shall have been delivered by
the Company, and subsequent transfer of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force, or (iv) such securities shall have ceased to be outstanding.
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"Registrable Sandler Securities" means (a) any Registrable Series A
Preferred Stock purchased by any Sandler Holder on the Original Closing Date or
thereafter acquired, (b) any Registrable Common Stock acquired by any Sandler
Holders upon the conversion of any Registrable Series A Preferred Stock, the
exercise of any Registrable Warrants or the exercise of the Option, (c) any
Registrable Warrants purchased by any Sandler Holder on the Original Closing
Date or thereafter acquired, and (d) any securities of the Company or any
successor entity into which Registrable Common Stock, Registrable Warrants or
Registrable Series A Preferred Stock may hereafter be reclassified, converted or
changed. As to any particular Registrable Sandler Securities, such securities
shall cease to be Registrable Sandler Securities upon the earlier to occur of
(i) 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 under such registration statement in accordance with the plan
of distribution set forth therein; (ii) such securities shall have been
transferred pursuant to Rule 144; (iii) such securities shall have been
otherwise transferred or disposed of, and new certificates therefor not bearing
a legend restricting further transfer shall have been delivered by the Company,
and subsequent transfer of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force,
or (iv) such securities shall have ceased to be outstanding.
"Registrable Series A Preferred Stock" means the Shares, together with
any additional shares of Series A Preferred Stock or other securities issued in
respect thereof (other than any Conversion Shares) in connection with any stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or similar event with respect to such Shares.
"Registrable Securities" means the Registrable DB Securities, the
Registrable Sandler Securities, the Registrable Lonstein Securities and the
Registrable Camden Securities.
"Registrable Warrants" means the Warrants, together with any Warrants
or other securities issued in respect thereof (other than any Warrant Shares) in
connection with any stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or similar event with respect to such
Warrants.
"Requesting Holders" means the Holders requesting a Demand
Registration, and shall include parties deemed "Requesting Holders" pursuant to
Sections 2.01(a)(v), (vi), (vii) and (viii).
"Rule 144" means Rule 144 (or any successor rule of similar effect)
promulgated under the Securities Act.
"Sandler Holders" means the Initial Sandler Holders, their direct and
indirect successors and assigns and any direct or indirect transferee of any
Registrable Securities initially held by any Initial Sandler Holder.
"Securities Purchase Agreement" has the meaning set forth in the first
recital.
"Selling Holder" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
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"Series A Preferred Stock" has the meaning set forth in the second
recital.
"Shares" has the meaning set forth in the second recital.
"Shelf Registration" means a Demand Registration which is effected
pursuant to Rule 415 under the Securities Act.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in connection with a Demand Registration or a Piggyback
Registration and not as part of such dealer's market-making activities.
"Warrants" has the meaning set forth in the second recital.
"Warrant Shares" means all shares of Common Stock or other securities
issued upon the exercise of the Warrants.
Section 1.02 Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to the Securities Purchase
Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01 Demand Registration. (a) (i) Holders of not less than a
majority of the Registrable DB Securities may make up to two written requests
for a Demand Registration (of which such Demand Registrations, one may be a
Shelf Registration) of all or any part of the Registrable DB Securities held by
such DB Holders; provided that the DB Holders shall not be entitled to a Demand
Registration if, during the 6 months preceding such request, the Holders have
requested a Demand Registration (unless such Demand Registration was preempted
pursuant to Section 2.01(e)).
(ii) Holders of not less than a majority of the Registrable Sandler
Securities may make up to two written requests for a Demand Registration (of
which such Demand Registrations, one may be a Shelf Registration) of all or any
part of the Registrable Sandler Securities held by such Sandler Holders;
provided that the Sandler Holders shall not be entitled to a Demand Registration
if, during the 6 months preceding such request, the Holders have requested a
Demand Registration (unless such Demand Registration was preempted pursuant to
Section 2.01(e)).
(iii) Holders of not less than a majority of the Registrable Lonstein
Securities may make up to two written requests for a Demand Registration of all
or any part of the Registrable Lonstein Securities held by such Lonstein
Holders; provided that (A) no such Demand Registration may be requested by the
Lonstein Holders prior to the second anniversary of the Original Closing Date,
and (B) the Lonstein Holders shall not be entitled to a Demand Registration if,
during the 6 months preceding such request, the Holders have requested a
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Demand Registration (unless such Demand Registration was preempted pursuant to
Section 2.01(e)).
(iv) Holders of not less than a majority of the Registrable Camden
Securities may make one written request for a Demand Registration (of which such
Demand Registration may be a Shelf Registration) of all or any part of the
Registrable Camden Securities held by such Camden Holders; provided that (A) no
such Demand Registration may be requested by the Camden Holders prior to the
first anniversary of the Closing Date, and (B) the Camden Holders shall not be
entitled to a Demand Registration if, during the 6 months preceding such
request, the Holders have requested a Demand Registration (unless such Demand
Registration was preempted pursuant to Section 2.01(e)).
(v) Any request for a Demand Registration will specify the aggregate
number of shares of Registrable Securities proposed to be sold by the Requesting
Holders and will also specify the intended method of disposition thereof. Any
such request for a Demand Registration shall specify whether such registration
will be a Shelf Registration. For so long as the Initial XX Xxxxxx holds
Registrable DB Securities, no Demand Registration made by any XX Xxxxxx shall be
a Shelf Registration without the consent of the Initial XX Xxxxxx. For so long
as the Initial Sandler Holders hold Registrable Sandler Securities, no Demand
Registration made by any Sandler Holder shall be a Shelf Registration without
the consent of a majority in interest of the Initial Sandler Holders. For so
long as the Initial Camden Holders hold Registrable Camden Securities, no Demand
Registration made by any Camden Holder shall be a Shelf Registration without the
consent of a majority in interest of the Initial Camden Holders. A registration
will not count as a Demand Registration until it has become effective. If the
Requesting Holders withdraw or do not pursue the request for the Demand
Registration (in each of the foregoing cases, provided that at such time the
Company is in compliance in all material respects with its obligations under
this Agreement), then such Demand Registration shall be deemed to have been
effected, provided that (i) if, the Demand Registration does not become
effective because a material adverse change has occurred, or is reasonably
likely to occur, in the condition (financial or otherwise), business,
properties, assets, liabilities, operations or prospects of the Company and its
subsidiaries taken as a whole subsequent to the date of the written request made
by the Requesting Holders or (ii) if, after the Demand Registration has become
effective, an offering of Registrable Securities pursuant to a registration is
interfered with by any stop order, injunction, or other order or requirement of
the Commission or other governmental agency or court then the Demand
Registration shall not be deemed to have been effected and will not count as a
Demand Registration.
(vi) Upon receipt of any request for a Demand Registration by Holders
of not less than a majority of the Registrable DB Securities held by the DB
Holders, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, and
subject to Section 2.01(f), all such Holders shall have the right, exercisable
by written notice to the Company within twenty (20) days of their receipt of the
Company's notice, to elect to include in such Demand Registration such portion
of their Registrable Securities as they may request. All such Holders requesting
to have their Registrable Securities included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be "Requesting
Holders" for purposes of this Section 2.01; provided
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that any Sandler Holders, any Lonstein Holders and any Camden Holders shall not
be deemed to be "Requesting Holders" for purposes of Section 2.01(c).
(vii) Upon receipt of any request for a Demand Registration by Holders
of not less than a majority of the Registrable Sandler Securities held by the
Sandler Holders, the Company shall promptly (but in any event within ten (10)
days) give written notice of such proposed Demand Registration to all other
Holders, and subject to Section 2.01(f), all such Holders shall have the right,
exercisable by written notice to the Company within twenty (20) days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a Demand
Registration in accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.01; provided that any DB
Holders, any Lonstein Holders and any Camden Holders shall not be deemed to be
"Requesting Holders" for purposes of Section 2.01(c).
(viii) Upon receipt of any request for a Demand Registration by
Holders of a majority of the Registrable Lonstein Securities held by the
Lonstein Holders, the Company shall promptly (but in any event within ten (10)
days) give written notice of such proposed Demand Registration to all other
Holders, and subject to Section 2.01(f), all such Holders shall have the right,
exercisable by written notice to the Company within twenty (20) days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a Demand
Registration in accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.01; provided that any DB
Holders, any Sandler Holders and any Camden Holders shall not be deemed to be
"Requesting Holders" for purposes of Section 2.01(c).
(ix) Upon receipt of any request for a Demand Registration by Holders
of not less than a majority of the Registrable Camden Securities held by the
Camden Holders, the Company shall promptly (but in any event within ten (10)
days) give written notice of such proposed Demand Registration to all other
Holders, and subject to Section 2.01(f), all such Holders shall have the right,
exercisable by written notice to the Company within twenty (20) days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a Demand
Registration in accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.01; provided that any DB
Holders, any Sandler Holders and any Lonstein Holders shall not be deemed to be
"Requesting Holders" for purposes of Section 2.01(c).
(b) In the event that the Requesting Holders withdraw or do not pursue
a request for a Demand Registration and, pursuant to Section 2.01(a) hereof,
such Demand Registration is deemed to have been effected, the Holders may
reacquire such Demand Registration (such that the withdrawal or failure to
pursue a request will not count as a Demand Registration hereunder) if the
Selling Holders reimburse the Company for any and all Registration Expenses
actually incurred by the Company in connection with such request for a Demand
Registration.
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(c) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. A majority in interest of the
Requesting Holders shall have the right to select the managing Underwriters and
any additional investment bankers and managers to be used in connection with any
offering under this Section 2.01, subject to the Company's approval, which
approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time and
manner of any disposition of Registrable Securities (which may be pursuant to a
Shelf Registration), and agree to take reasonable action to cooperate with the
Company in effecting the disposition of the Registrable Securities in a manner
that does not unreasonably disrupt the public trading market for the Common
Stock.
(e) The Company shall have the right for up to 180 days in any
consecutive 360 day period to delay or suspend any Demand Registration in the
event that the Board determines, in good faith, that it is in the best interest
of the Company for the Company to proceed with its own offering of equity
securities. The Company may so proceed by delivering written notice (within five
business days after the Company has received a request for such Demand
Registration) of such intention to the Selling Holder indicating that the
Company has identified a specific business need and use for the proceeds of the
sale of such securities and the Company shall use its best efforts to effect a
primary registration within 60 days of such notice. In the ensuing primary
registration, the Holders will have such piggyback registration rights as are
set forth in Section 2.02 hereof. Upon the Company's preemption of a requested
Demand Registration, such requested registration will not count as the Holders'
Demand Registration. The Company may exercise the right to preempt only once in
any 360-day period. Notwithstanding anything to the contrary contained herein,
during any 360-day period the Company shall not exercise its right to preempt,
delay or postpone the filing or effectiveness of any registration statement,
pre- or post-effective amendment or supplement or prospectus supplement pursuant
to this Section 2.01(e), the first proviso to Section 3.01(a), or Section
3.01(b) for more than 180 days in the aggregate for all such provisions during
any period of 360 consecutive days.
(f) Priority on Demand Registrations. No securities to be sold for the
account of any Person (including the Company) other than a Requesting Holder
shall be included in a Demand Registration unless the managing Underwriter or
Underwriters shall advise the Company and the Requesting Holders in writing that
the inclusion of such securities will not materially and adversely affect the
price, distribution or timing of the offering (a "Material Adverse Effect"). Any
additional securities to be included in a Demand Registration pursuant to this
Section 2.01(f) shall be included in such Demand Registration in accordance with
their relative rights. Furthermore, in the event the managing Underwriter or
Underwriters shall advise the Company or the Requesting Holders that even after
exclusion of all securities of other Persons (including the Company) pursuant to
the immediately preceding sentence, the amount of Registrable Securities
proposed to be included in such Demand Registration by Requesting Holders is
sufficiently large to cause a Material Adverse Effect, the Registrable
Securities of the Requesting Holders to be included in such Demand Registration
shall equal the number of shares which the Company and the Requesting Holders
are so advised can be sold in such offering
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without a Material Adverse Effect and such shares shall be allocated pro rata
among the Requesting Holders on the basis of the number of Registrable
Securities requested to be included in such registration by each such Requesting
Holder; provided, however, that if any Registrable Securities requested to be
registered pursuant to a Demand Registration under Section 2.01 are excluded
from registration hereunder, then the Holder(s) having shares excluded
("Excluded Holders") shall have the right to withdraw all, or any part, of their
shares from such registration; provided, further, that if less than 80% of the
Registrable Securities requested to be included in such Demand Registration are
actually included therein, such registration will not count as a Demand
Registration for purposes of this Section 2.01.
Section 2.02 Piggyback Registration. (a) If the Company at any time
proposes to file a registration statement under the Securities Act with respect
to an offering of securities for its own account or for the account of another
Person (other than a registration statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the Commission) and other than a Demand
Registration hereunder), the Company shall give written notice of such proposed
filing to the Holders at the address set forth in the share register of the
Company as soon as reasonably practicable (but in no event less than 15 days
before the anticipated date on which such registration will be first filed with
the Commission), undertaking to provide each Holder the opportunity to register
on the same terms and conditions such number and type of Registrable Securities
as such Holder may request (a "Piggyback Registration"). Each Holder will have
ten business days after receipt of any such notice to notify the Company as to
whether it wishes to participate in a Piggyback Registration (which notice shall
not be deemed to be a request for a Demand Registration); provided that should a
Holder fail to provide timely notice to the Company, such Holder will forfeit
any rights to participate in the Piggyback Registration with respect to such
proposed offering. In the event that the registration statement is filed on
behalf of a Person other than the Company, the Company will use its best efforts
to have the shares of Registrable Securities that the Holders wish to sell
included in the registration statement. If the Company shall determine in its
sole discretion not to register or to delay the proposed offering, the Company
shall provide written notice of such determination to the Holders and (i) in the
case of a determination not to effect the proposed offering, shall thereupon be
relieved of the obligation to register such Registrable Securities in connection
therewith, and (ii) in the case of a determination to delay a proposed offering,
shall thereupon be permitted to delay registering such Registrable Securities
for the same period as the delay in respect of the proposed offering. As between
the Company and the Selling Holders, the Company shall be entitled to select the
Underwriters in connection with any Piggyback Registration.
(b) Priority on Piggyback Registrations. If the Registrable Securities
requested to be included in the Piggyback Registration by any Holder differ from
the type of securities proposed to be registered by the Company and the managing
Underwriter advises the Company that due solely to such differences the
inclusion of such Registrable Securities would cause a Material Adverse Effect,
then (i) the number of such Holders' Registrable Securities to be included in
the Piggyback Registration shall be reduced to an amount which, in the opinion
of the managing Underwriter, would eliminate such Material Adverse Effect or
(ii) if no such reduction would, in the opinion of the managing Underwriter,
eliminate such Material Adverse Effect, then the Company shall have the right to
exclude all such Registrable Securities from such Piggyback Registration,
provided that no other securities of such type are included and
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offered for the account of any other Person in such Piggyback Registration. Any
partial reduction in number of Registrable Securities of any Holder to be
included in the Piggyback Registration pursuant to clause (i) of the immediately
preceding sentence shall be effected pro rata based on the ratio which such
Holder's requested shares bears to the total number of shares requested to be
included in such Piggyback Registration by all Persons other than the Company
who have the contractual right to request that their shares be included in such
registration statement and who have requested that their shares be included. If
the Registrable Securities requested to be included in the registration
statement are of the same type as the securities being registered by the Company
and the managing Underwriter advises the Company that the inclusion of such
Registrable Securities would cause a Material Adverse Effect, the Company will
be obligated to include in such registration statement, as to each Holder only a
portion of the shares such Holder has requested be registered equal to the ratio
which such Holder's requested shares bears to the total number of shares
requested to be included in such registration statement by all Persons who have
the contractual right to request that their shares be included in such
registration statement and who have requested their shares be included;
provided, however, that the provisions of this sentence shall not be applicable
to the Person or Persons initiating such registration statement. If the Company
initiated the registration, then the Company may include all of its securities
in such registration statement before any such Holder's requested shares are
included. If another security holder initiated the registration, then the
Company may not include any of its securities in such registration statement
unless all Registrable Securities requested to be included in the registration
statement by all Holders are included in such registration statement. If as a
result of the provisions of this Section 2.02(b) any Holder shall not be
entitled to include all Registrable Securities in a registration that such
Holder has requested to be so included, such Holder may withdraw such Holder's
request to include Registrable Securities in such registration statement prior
to its effectiveness.
ARTICLE III
REGISTRATION PROCEDURES
Section 3.01 Filings; Information. In connection with the registration
of Registrable Securities pursuant to Section 2.01 and Section 2.02 hereof, the
Company will use its best efforts to effect the registration of such Registrable
Securities as promptly as is reasonably practicable, and in connection with any
such request:
(a) The Company will expeditiously prepare and file as soon as
practicable (but in any event within 60 days) with the Commission a
registration statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to
become and remain effective (i) with respect to any Demand Registration
(other than a Shelf Registration) or Piggyback Registration, for such
period, not to exceed 120 days, as may be reasonably necessary to effect
the sale of such securities and (ii) with respect to a Shelf Registration,
until the earlier of the sale of all Registrable Securities thereunder and
the end of the 36th calendar month from the time the second Shelf
Registration becomes effective; provided
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that if the Company shall furnish to the Selling Holder a certificate
signed by the Company's Chairman or President stating that the Company's
Board of Directors has determined in good faith that it would be
detrimental or otherwise disadvantageous to the Company or its shareholders
for such a registration statement to be filed as expeditiously as possible
because the sale of Registrable Securities covered by such registration
statement or the disclosure of information in any related prospectus or
prospectus supplement would materially interfere with any acquisition,
financing or other material event or transaction which is then intended or
the public disclosure of which at the time would be materially prejudicial
to the Company, the Company may postpone the filing or effectiveness of a
registration statement for a period of not more than 180 days; provided,
further, that the Company shall not exercise its right to preempt, delay or
postpone any registration pursuant to Section 2.01(e), the first proviso to
this Section 3.01(a), or Section 3.01(b) for more than 180 days in the
aggregate for all such provisions during any period of 360 consecutive
days; provided, further, that the Company may exercise its rights under
Section 3.01(a) only once with respect to any particular registration
statement; and provided, further, that if (i) the effective date of any
registration statement filed pursuant to a Demand Registration would
otherwise be at least 45 calendar days, but fewer than 90 calendar days,
after the end of the Company's fiscal year, and (ii) the Securities Act
requires the Company to include audited financial statements of the Company
as of the end of such fiscal year, the Company may delay the effectiveness
of such registration statement for such period as is reasonably necessary
to include therein its audited financial statements for such fiscal year.
(b) Anything in this Agreement to the contrary notwithstanding, it is
understood and agreed that the Company shall not be required to keep any
Shelf Registration effective or useable for offers and sales of the
Registrable Securities, file a post effective amendment to a Shelf
Registration statement or prospectus supplement or to supplement or amend
any registration statement, if the Company is then involved in discussions
concerning, or otherwise engaged in, any material financing or investment,
acquisition or divestiture transaction or other material business purpose,
if the Company determines in good faith that the making of such a filing,
supplement or amendment at such time would interfere with such transaction
or purpose. The Company shall promptly give the Holders of Registrable
Securities written notice of such postponement containing a general
statement of the reasons for such postponement and an approximation of the
anticipated delay. Upon receipt by a Holder of Registrable Securities of
notice of an event of the kind described in this Section 3.01(b), such
Holder shall forthwith discontinue such Holder's disposition of Registrable
Securities until such Holder's receipt of notice from the Company that such
disposition may continue and of any supplemented or amended prospectus
indicated in such notice. Notwithstanding anything to the contrary
contained herein, the Company shall not be entitled to preempt, delay or
postpone the filing or effectiveness of any registration statement, pre- or
post-effective amendment or supplement to any registration statement or
prospectus supplement pursuant to Section 2.01(e), the first proviso of
Section 3.01(a), or this Section 3.01(b) for more than 180 days in the
aggregate for all such provisions during any period of 360 consecutive
days.
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(c) Before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to any Selling
Holder and to the applicable managing Underwriters, if any, draft copies of
all such documents proposed to be filed at least ten (10) business days
prior thereto, which documents will be subject to the reasonable review of
such Selling Holders, the applicable managing Underwriters, if any, and
their respective counsel, agents and representatives, and the Company will
not file any registration statement or amendment thereto or any prospectus
or any supplement thereto (including such documents incorporated by
reference) to which any Selling Holder or Underwriter shall reasonably
object.
(d) The Company will notify the Selling Holders requesting such
registration and (if requested) confirm such advice in writing, as soon as
practicable after notice thereof is received by the Company (i) when the
registration statement or any amendment thereto has been filed or becomes
effective, the prospectus or any amendment or supplement to the prospectus
has been filed, (ii) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information, (iii) if at any time the representations and
warranties contemplated by Section 5.01 cease to be true and correct and
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for offering
or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) After the filing of the registration statement, the Company will
promptly notify the Selling Holders of any stop order issued, or, to the
Company's knowledge, threatened to be issued, by the Commission and use its
best efforts to prevent the entry of such stop order or to remove it if
entered.
(f) The Company will prepare and file with the Commission such
amendments, post-effective amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not
less than 120 days (or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been
sold or withdrawn, but not prior to the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder,
if applicable), cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act, and comply with the provisions of the
Securities 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 Selling Holders set forth in such
registration statement.
(g) The Company will furnish to each Selling Holder requesting such
registration and the managing Underwriter, if any, without charge, one
signed copy and such number of conformed copies of such registration
statement, each amendment and supplement thereto, the prospectus included
in such registration statement (including each preliminary prospectus) and
any amendments or supplements thereto, any documents incorporated by
reference therein and such other documents as any such Selling Holder or
such managing Underwriter may reasonably request in order to facilitate the
disposition of
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the Registrable Securities (it being understood that the Company consents
to the use of the prospectus (including the preliminary prospectus) and any
amendment or supplement thereto by the Selling Holder requesting such
registration and the managing Underwriter, if any, in connection with the
offering and sale of the Registrable Securities covered by the prospectus
or any amendment or supplement thereto).
(h) The Company will use its best efforts to qualify the Registrable
Securities for offer and sale under such other securities or blue sky laws
of such jurisdictions in the United States as the Selling Holders
reasonably request; keep each such registration or qualification (or
exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts
and things which may be reasonably necessary or advisable to enable each
Selling Holder to consummate the disposition of the Registrable Securities
owned by such Selling Holder in such jurisdictions; 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 paragraph 3.01(h), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(i) The Company will as promptly as is practicable notify the Selling
Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered under the
Securities Act, of the occurrence of any event requiring the preparation of
a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and promptly make available to the Selling Holders and
to the Underwriters any such supplement or amendment. Upon receipt of any
notice of the occurrence of any event of the kind described in the
preceding sentence, Selling Holders will forthwith discontinue the offer
and sale of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until receipt by the Selling Holders
and the Underwriters of the copies of such supplemented or amended
prospectus and, if so directed by the Company, the Selling Holders will
deliver to the Company all copies, other than permanent file copies then in
the possession of Selling Holders, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. In the
event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained
effective as provided in Section 3.01(a) hereof by the number of days
during the period from and including the date of the giving of such notice
to the date when the Company shall make available to the Selling Holders
such supplemented or amended prospectus.
(j) The Company will enter into customary agreements (including an
underwriting agreement in customary form, including customary
representations, warranties, covenants, conditions and indemnities) and
take such other actions as are required or reasonably requested by the
Selling Holders or the managing Underwriter in order to expedite or
facilitate the sale of such Registrable Securities.
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(k) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the
managing Underwriter may reasonably request and (ii) a comfort letter or
comfort letters (and updates thereof) from the Company's independent public
accountants covering such customary matters as the managing Underwriter may
reasonably request.
(l) If requested by the managing Underwriter or any Selling Holder,
the Company shall promptly incorporate in a prospectus supplement or post
effective amendment such information as the managing Underwriter or any
Selling Holder reasonably requests to be included therein, including
without limitation, with respect to the Registrable Securities being sold
by such Selling Holder, the purchase price being paid therefor by the
Underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering, and
promptly make all required filings of such prospectus supplement or post
effective amendment.
(m) The Company shall promptly make available for inspection by any
Selling Holder or Underwriter participating in any disposition pursuant to
any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information requested by any such
Selling Holder or Underwriter in connection with such registration
statement.
(n) The Company shall cause the Registrable Securities included in any
registration statement to be (A) listed on each securities exchange, if
any, on which similar securities issued by the Company are then listed, or
(B) authorized to be quoted and/or listed (to the extent applicable) on the
Nasdaq National Market if the Registrable Securities so qualify.
(o) The Company shall provide a CUSIP number, registrar and transfer
agent for the Registrable Securities included in any registration statement
not later than the effective date of such registration statement.
(p) The Company shall cooperate with each Selling Holder and each
Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
(q) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(r) The Company will make generally available to its security holders,
as soon as reasonably practicable, an earnings statement covering a period
of 12 months,
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beginning within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(s) The Company will use its best efforts to cause all such
Registrable Securities and, in the event of a public offering of Series A
Preferred Stock, the Series A Preferred Stock (subject to applicable
listing requirements), to be listed on each securities exchange or quoted
on each inter-dealer quotation system on which the Common Stock is then
listed or quoted.
The Company may require Selling Holders promptly to furnish in writing
to the Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as may be
legally required in connection with such registration.
Section 3.02 Registration Expenses. The Company will pay all
registration expenses of the Selling Holders in connection with any Demand
and/or Piggyback Registrations including but not limited to (i) registration and
filing fees with the Commission and the National Association of Securities
Dealers, Inc., (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) fees and expenses incurred in connection with the listing or quotation of
the Registrable Securities, (v) fees and expenses of counsel to the Company and
the reasonable fees and expenses of independent certified public accountants for
the Company (including fees and expenses associated with the special audits or
the delivery of comfort letters), (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration,
(vii) all roadshow costs and expenses not paid by the Underwriters, (viii)
rating agency fees and (ix) fees and expenses of counsel to the holders of
Registrable Securities.
The Company will not be required to pay for any underwriting discounts
and commissions attributable to the sale of Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.01 Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by applicable law,
each Selling Holder and its Affiliates and their respective officers, directors,
partners, stockholders, members, employees, agents and representatives and each
Person (if any) which controls a Selling Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities, costs and expenses
(including attorneys, fees) (collectively, "Losses") caused by, arising out of,
resulting from or related to any untrue statement or alleged untrue statement of
a material fact contained in any registration statement, preliminary prospectus
or prospectus relating to the Registrable Securities (as amended or supplemented
from time to time), or caused by 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, except insofar as such Losses are caused by
or contained in or based upon any information furnished in writing to the
Company by or on behalf of such Selling Holder or any Underwriter expressly for
use therein (which was not subsequently corrected in writing prior to or
concurrently with the sale of Registrable Securities to the Person asserting the
Loss) or by the Selling Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished the Selling Holder with copies of the same. The Company
also agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each Person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 4.01. Notwithstanding the foregoing, the
Company shall have no obligation to indemnify under this Section 4.01 to the
extent any such Losses have been finally and non-appealably determined by a
court of competent jurisdiction to have resulted from a Selling Holder's or
Underwriter's willful misconduct or gross negligence.
Section 4.02 Indemnification by Selling Holders. The Selling Holders
agree to indemnify and hold harmless, to the fullest extent permitted by
applicable law, the Company and its Affiliates and their respective officers,
directors, partners, stockholders, members, employees, agents and
representatives and each Person (if any) which controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all Losses caused by, arising out of, resulting
from or related to any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, preliminary prospectus or
prospectus relating to the Registrable Securities (supplemented from time to
time) or any preliminary prospectus, or caused by 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, but only insofar as
such Losses are caused by or contained in or based upon any information
furnished in writing to the Company by or on behalf of such Selling Holder or
any Underwriter expressly for use therein (which was not subsequently corrected
in writing prior to or concurrently with the sale of Registrable Securities to
the Person asserting the Loss). Notwithstanding the foregoing, the Selling
Holder shall have no obligation to indemnify under this Section 4.02 to the
extent that any such Losses have been finally and non-appealably determined by a
court of competent jurisdiction to have resulted from the Company's willful
misconduct or gross negligence.
Section 4.03 Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted or
threatened involving any Person in respect of which indemnity may be sought
pursuant to Section 4.01 or Section 4.02, such Person (the "Indemnified Party")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing (it being understood that the failure to give
such notice shall not relieve any Indemnifying Party from any liability which it
may have hereunder except to the extent the Indemnifying Party is actually and
materially prejudiced by such failure) and the Indemnifying Party, upon the
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to such Indemnified Party to represent such Indemnified Party and any other
Persons the Indemnifying Party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. If the
Indemnifying Party does not elect within 15 days after receipt of the notice
required hereby to assume the defense of
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any proceeding, the Indemnified Party may assume such defense with counsel of
its choice at the cost and expense of the Indemnifying Party. In any such
proceeding where the Indemnifying Party has assumed the defense, any Indemnified
Party shall have the right to retain its own counsel and participate in the
defense, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and, in the opinion of
counsel for the Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicting interests
between them or there exist defenses available to the Indemnified Party which
are not available to the Indemnifying Party. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel for
each such jurisdiction) at any time for all such Indemnified Parties, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. The Indemnifying Party shall
not settle any claim or proceeding without the written consent of the
Indemnified Party, unless such settlement (x) requires no relief or penalty
other than the payment of money damages, (y) does not require any Indemnified
Party to admit culpability or fault in any respect and (z) contains a full and
complete release of the Indemnified Party with respect to all matters arising
from the facts giving rise to the underlying claim or proceeding. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent (not to
be unreasonably withheld), or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
Section 4.04 Contribution. If the indemnification provided for in this
Article IV is unavailable to an Indemnified Party in respect of any Losses in
respect of which indemnity is to be provided hereunder, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
fullest extent permitted by law contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of such party in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the Company, each
Selling Holder and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Selling Holder agrees that it would not be just
and equitable if contribution pursuant to this Section 4.04 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the
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limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article IV, no Selling
Holder shall be required to indemnify for or contribute any amount in excess of
the amount by which the net proceeds of the offering received by such Selling
Holder exceeds the amount of any damages which such Selling Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
ARTICLE V
MISCELLANEOUS
Section 5.01 Participation in Underwritten Registrations. No Person
may participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, (b) completes and executes all questionnaires, powers
of attorney, custody arrangements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement and (c) furnishes in writing to the Company such
information regarding such Person, the plan of distribution of the Registrable
Securities and other information as the Company may from time to time request or
as may be legally required in connection with such registration; provided,
however, that no such Person shall be required to make any representations or
warranties in connection with any such registration other than representations
and warranties as to (i) such Person's ownership of his or its Registrable
Securities to be sold or transferred free and clear of all liens, claims and
encumbrances, (ii) such Person's power and authority to effect such transfer and
(iii) such matters pertaining to compliance with securities laws as may be
reasonably requested; provided further, however, that the obligation of such
Person to indemnify pursuant to any such underwriting agreements shall be
several, not joint and several, among such Persons selling Registrable
Securities, and the liability of each such Person will be in proportion to, and
limited to, the net amount received by such Person from the sale of such
Person's Registrable Securities pursuant to such registration.
Section 5.02 Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as the Holders may reasonably request
to the extent required from time to time to enable the Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or 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 reporting requirements.
Section 5.03 Holdback Agreements. Each Holder agrees, in the event of
an underwritten offering for the account of the Company not to offer, sell,
contract to sell or otherwise dispose of any Registrable Securities, or any
securities convertible into or
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exchangeable or exercisable for such securities, including any sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 14 days prior to, and during the 120 day period (or such
lesser period as the lead or managing underwriters may require) beginning on,
the effective date of the registration statement for such underwritten offering
(or, in the case of an offering pursuant to an effective shelf registration
statement pursuant to Rule 415, the pricing date for such underwritten
offering).
Section 5.04 Termination. The registration rights granted under this
Agreement will terminate at such time as there shall no longer be any
Registrable Securities.
Section 5.05 Amendments, Waivers, Etc. This Agreement may not be
amended, waived or otherwise modified or terminated except by an instrument in
writing signed by the Company and Holders of at least 66-2/3% of the Registrable
Securities then held by all Holders, if the amendment is to be effective against
the Holders, provided that to the extent such amendment, waiver, discharge or
termination could reasonably be expected to adversely affect the rights of a
particular Holder or class of Holders in a manner different from its effect on
all other Holders or classes of Holders, then such Holder (or a
majority-in-interest determined by holdings of Registrable Securities on a
fully-converted basis) of such class of Holders, as the case may be, must
consent to such amendment, waiver, discharge or termination.
Section 5.06 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
Each party need not sign the same counterpart.
Section 5.07 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 5.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
Section 5.09 Assignment of Registration Rights. Each Holder of the
Registrable Securities may assign all or any part of its rights under this
Agreement to any Person to whom such Holder sells, transfers or assigns such
Registrable Securities. In the event that the Holder shall assign its rights
pursuant to this Agreement in connection with the transfer of less than all its
Registrable Securities, the Holder shall also retain his rights with respect to
its remaining Registrable Securities.
Section 5.10 Specific Performance. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by the Holders
by reason of any breach by it of the provisions of this Agreement and hereby
agrees that the Holders, in addition to any remedies which they may have at law,
including monetary damages, will be entitled to the remedy of specific
performance.
Section 5.11 No Superior Registration Rights. The Company will not
grant registration rights superior to those of the Holders pursuant to this
Agreement.
-21-
IN WITNESS WHEREOF, the Company and The Holders have caused this
Agreement to be signed on its behalf by its officer thereunto duly authorized as
of the date first written above.
INFOCROSSING, INC.
By:
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
DB CAPITAL INVESTORS, L.P.
By:
-----------------------------------------
Name:
Title:
DB Capital Partners, L.P.,
its General Partner
By:
-----------------------------------------
Name:
Title:
DB Capital Partners, Inc.,
its General Partner
By:
-----------------------------------------
Name:
Title:
SANDLER CAPITAL PARTNERS V, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By:
-----------------------------------------
Name:
Title:
Signature page to the Reg Rights Agreement
NDLER CAPITAL PARNTERS V FTE, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By:
-----------------------------------------
Name:
Title:
SANDLER TECHNOLOGY PARTNERS, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By:
-----------------------------------------
Name:
Title:
SANDLER CO-INVESTMENT PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By:
-----------------------------------------
Name:
Title:
PRICE FAMILY LIMITED PARTNERS
By:
-----------------------------------------
Name:
Title:
Signature page to the Reg Rights Agreement
XXXXXX, X.X.
By:
-----------------------------------------
Name:
Title:
CAMDEN PARTNERS STRATEGIC
FUND II-A, L.P..
By: Camden Partners Strategic II, LLC.
its General Partner
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
CAMDEN PARTNERS STRATEGIC
FUND II-B, L.P..
By: Camden Partners Strategic II, LL
its General Partner
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P.
By: Camden Partners Strategic II, LLC.,
its General Partner
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
STRATEGIC ASSOCIATES, L.P..
By: Camden Partners Strategic II, LLC.,
its General Partner
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
