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EXHIBIT 10.30
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of January 4, 2000 (this
"Agreement"), is between Xxxxx Xxxxxxx ("Xxxxxxx"), and XxxxxXxxxxxx.xxx, Inc.,
a Colorado corporation (the "Company").
RECITALS
WHEREAS, Xxxxxxx has been granted the option to purchase 100,000 shares
of the Company's Common Stock.
WHEREAS, the parties have agreed that the Xxxxxxx shall have certain
registration rights as set forth more fully below.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, any capitalized terms
used herein have the following meanings:
(a) "COMMISSION" means the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
(b) "COMMON STOCK" means the Common Stock, par value $0.01 per
share, of the Company.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(d) "PERSON" means a natural person, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or a governmental
entity or any department, agency or political subdivision thereof.
(e) The terms "REGISTER," "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing with the Commission a
registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement.
(f) "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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2. Demand Registration.
(a) Demand for Registration. On any date after the first
anniversary of the date hereof, Xxxxxxx may, on one occasion only, by written
request, require the Company to effect the registration under the Securities Act
of Common Stock. Upon receipt of such request, the Company shall, as soon as
practicable, and in any event within 180 days of receiving such request, use all
reasonable efforts to effect such registration (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) in order
to permit the sale or other disposition of Common Stock in accordance with the
intended method of sale or other disposition described in such request and in
any such response. The Company shall not be required to effect a registration
requested pursuant to this Section 2, if the Company has effected a registration
pursuant to this Section within the previous six months; or (ii) the gross
proceeds from the sale of the Common Stock requested to be registered is not
expected in the reasonable judgment of the board of directors of the Company to
be at least $5,000,000. The Company shall maintain the effectiveness of any such
registration statement for the earlier of 90 days or until the shares of Common
Stock registered by Xxxxxxx thereunder have been sold.
(b) Underwriting. In the event that a registration pursuant to
this Section 2 is for a registered public offering involving an underwriting,
the Company may include Common Stock for its own account, or for the account of
other stockholders having rights to participate in the Company's registrations,
in any registration pursuant to this Section 2, subject to the provisions of
Section 4. Xxxxxxx shall bear the cost of any underwriters' discounts and
commissions relating to his Common Stock which is sold and the cost of his legal
counsel. All other costs of registration shall be borne by the Company.
3. "Piggy-Back" Registration.
(a) Notice of Registration. If, at any time or from time to
time the Company proposes to register any Common Stock under the Securities Act
(except pursuant to an exercise of the registration rights granted by Section 2
hereof and except pursuant to a registration statement filed on Form S-4 or Form
S-8 or any successor forms), it will at each such time or times give prompt
written notice to Xxxxxxx of his intention to do so and, upon the written
request of Xxxxxxx given within 20 days after receipt of such written notice
from the Company (which request shall state the intended method of disposition
thereof), the Company will use all reasonable efforts to effect the registration
of the Common Stock which it shall have been so requested to register by
including the same in such registration statement (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all to the extent requisite to permit the sale or other disposition
thereof in accordance with the intended method of sale or other disposition
given in each such request.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise Xxxxxxx as a part of the written notice given pursuant
to this Section 3. In such event, the right of Xxxxxxx to
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registration pursuant to this Section 3 shall be conditioned upon Xxxxxxx'
participation in such underwriting and the inclusion of Xxxxxxx' Common Stock in
the underwriting to the extent provided herein. Xxxxxxx shall (together with the
Company and any other stockholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company. Xxxxxxx
shall bear the cost of any underwriters' discounts and commissions relating to
his Common Stock which is sold and the cost of his legal counsel. All other
costs of registration shall be borne by the Company.
4. Priority in Registration. If the Company's managing underwriters
shall advise the Company and Xxxxxxx in writing that the inclusion in any
registration pursuant to this Agreement of some or all of the Common Stock
sought to be registered by Xxxxxxx creates a substantial risk that the proceeds
or price the Company will derive from such registration will be materially
reduced or that the number of securities to be registered (including those
sought to be registered at the instance of the Company and any other party
entitled to participate in such registration as well as those sought to be
registered by Xxxxxxx) is too large a number to be reasonably sold, the Company
shall include in such registration the number of shares which the Company is so
advised can be sold in such offering (but shall have no obligations to Xxxxxxx
to include any more than such number):
(a) if such registration is pursuant to Section 2 hereof (i)
first, Common Stock requested by Xxxxxxx to be included in such registration
pursuant to this Agreement, and (ii) second, those securities sought to be
registered by the Company and any other party entitled to participate in such
registration; or
(b) if such registration is pursuant to Section 3 hereof (i)
first, Common Stock to be registered by the Company, (ii) second, Common Stock
sought to be registered by Xxxxxxx and all other parties entitled to participate
in such registration.
To facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocated to Xxxxxxx to
the nearest 100 shares.
5. Holdback. If a registration under Section 2 or Section 3 shall be in
connection with an underwritten Public Offering, Xxxxxxx shall agree, upon the
request of the Company or the managing underwriters not to effect any public
sale or distribution, including any sale pursuant to Rule 144, of any shares of
Common Stock (other than as part of such underwritten Public Offering) within
seven days before or 90 days after the effective date of such registration
statement, or such other shorter period of time as the underwriters may require;
provided that the officers and directors of the Company who own Common Stock and
any other Person permitted to sell shares of Common Stock in a registration also
agree to such restrictions.
6. Certain Information. As a condition to the inclusion of Xxxxxxx'
Common Stock in any registration statement, Xxxxxxx will furnish to the Company
such information as the Company may request in writing with respect to Xxxxxxx
and as shall be required to be disclosed in the registration statement (and the
prospectus included therein) by the applicable rules, regulations and guidelines
of the Commission.
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7. Registration Procedures. If and whenever the Company is required to
use all reasonable efforts to effect registration, qualification or compliance
pursuant to this Agreement, the Company will keep Xxxxxxx advised in writing as
to the initiation of each registration and as to the completion thereof. At its
expense, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission (in the case of a
registration pursuant to Section 2, not later than 90 days after the requisite
request therefor) a registration statement on the appropriate form with respect
to such Common Stock and use all reasonable efforts to cause such registration
statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such securities (and in the case of registration
pursuant to Section 2 for 90 days or until the shares of Common Stock registered
by Xxxxxxx thereunder have been sold);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be reasonably necessary to keep such registration statement
effective for such period as may be reasonably necessary to effect the sale of
such securities, (and in the case of registrations pursuant to Section 2 for 90
days or until the shares of Common Stock registered by Xxxxxxx thereunder have
been sold), and otherwise as may be necessary to comply with the provisions of
the Securities Act, or the rules and regulations thereunder, with respect to the
disposition of all of the Common Stock covered by such registration statement
until such time as all of the Common Stock registered thereunder has been
disposed of in accordance with the intended method of disposition of the sellers
set forth in such registration statement;
(c) furnish Xxxxxxx, under the Securities Act, and to each
underwriter, if any, of such Common Stock such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller or underwriter may reasonably request,
in order to facilitate the public sale or other disposition of such Common Stock
owned by such seller or the sale of such Common Stock by such underwriters;
(d) use all reasonable efforts to register or qualify such
Common Stock under such other securities or blue sky laws of such jurisdictions
as such seller shall reasonably request to consummate the public sale or the
disposition in each such jurisdiction of the units owned by such seller
(provided, however, that the Company shall 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 subparagraph, (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction);
(e) prepare and file with the Commission promptly upon the
request of Xxxxxxx, any amendments or supplements to such registration statement
or prospectus which, in the reasonable opinion of counsel for Xxxxxxx, is
required under the Securities Acts or the rules and regulations thereunder in
connection with the distribution of the Common Stock by Xxxxxxx; and
(f) advise Xxxxxxx promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such
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registration statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
8. Indemnification.
(a) The Company will indemnify and hold harmless Xxxxxxx from
and against any and all losses, claims, damages, liabilities (or actions in
respect thereof) and legal and other expenses (including costs of investigation)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Common Stock was
registered under the Securities Act, any prospectus or preliminary prospectus
contained therein, any offering circular or other document, or any amendment or
supplement thereto, or caused by an omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
statements therein not misleading or any violation by the Company of the
Securities Act or any rule or regulation promulgated thereunder applicable to
the Company in connection with any such registration, qualification or
compliance, except insofar as such losses, claims, damages, liabilities or
expenses are caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with written
information relating to Xxxxxxx and furnished to the Company by an instrument
duly executed by Xxxxxxx or his legal counsel expressly for use therein.
(b) It shall be a condition to the obligation of the Company
to effect a registration of Common Stock under the Securities Act pursuant
hereto that Xxxxxxx indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act to the same extent as the indemnity from the Company in the
foregoing paragraph, but only to the extent that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such seller or his legal counsel
expressly for use therein.
(c) In case any claim shall be made or any proceeding
(including any governmental investigation) shall be instituted involving any
indemnified party in respect of which indemnity may be sought pursuant to this
Section 8, such indemnified party shall promptly notify the indemnifying party
in writing of the same; provided that failure to notify the indemnifying party
shall not relieve it from any liability it may have to an indemnified party
otherwise than under this Section 10 unless the failure to give such notice is
materially prejudicial to an indemnifying party's ability to defend such action.
The indemnifying party will be entitled, at its own expense, to assume the
defense of any such claim or any litigation resulting therefrom, provided that
counsel for the indemnifying party, who shall conduct the defense of such claim
or litigation shall be reasonably satisfactory to the indemnified party. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and disbursements of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party shall have failed
to retain counsel for the indemnified party as aforesaid, (ii) the indemnifying
party and such indemnified party shall have mutually agreed to the retention of
such counsel or (iii) representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential
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differing interests between such indemnified party and any other party
represented by such counsel in such proceeding; provided that the Company shall
not be liable for the fees and disbursements of more than one additional counsel
for all indemnified parties. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
9. Binding Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto.
10. Amendment. Any provision of this Agreement may be amended,
supplemented, waived, discharged or terminated by a written instrument signed by
the Company and Xxxxxxx.
11. Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement shall be considered divisible and such provision
shall be deemed inoperative to the extent it is deemed unenforceable, and in all
other respects this Agreement shall remain in full force and effect; provided,
however, that if any such provision may be made enforceable by limitation
thereof, then such provision shall be deemed to be so limited and shall be
enforceable to the maximum extent permitted by applicable law.
12. Entire Agreement. This Agreement and the other writings referred to
herein, or delivered pursuant hereto, contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect hereto.
13. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only, do not constitute a part of this Agreement
and shall not affect in any manner the meaning or interpretation of this
Agreement.
14. Notices; Addresses. Any notice, communication, payment or demand
required or permitted to be given or made hereunder shall be in writing and will
be deemed to have been given or made for all purposes if (i) delivered
personally (effective upon delivery), (ii) mailed by U.S. mail, registered or
certified, postage prepaid, return receipt requested (effective two days after
mailing), (iii) sent by a national overnight delivery service (effective one day
after delivery to such delivery service), or (iv) sent by telecopy (effective
upon confirmation of transmission), in each case, addressed as indicated on the
stock transfer records of the Corporation.
15. GOVERNING LAW. THE VALIDITY, MEANING AND EFFECT OF THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
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16. Counterparts. This Agreement may be executed by the parties hereto
by telecopy in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
17. Effectiveness. This Agreement shall be effective as to Xxxxxxx and
shall apply to all shares of Common Stock owned beneficially and of record by
Xxxxxxx, whether now owned or subsequently acquired.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
XXXXXXXXXXXX.XXX, INC.
By:
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Name:
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Title:
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Xxxxx Xxxxxxx
