EXHIBIT 4.09
XXXXXXXX.XXX
DEMAND REGISTRATION RIGHTS AGREEMENT
This DEMAND REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as
of May 30, l997 is made by and among XXXXXXXX.XXX, a California corporation (the
"Company") and the persons listed on the attached Schedule A who become
signatories to this Agreement (collectively, the "Investors").
RECITALS
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A. The Company and the Investors have entered into agreements for
the sale by the Company, and purchase by the Investors, of certain of the
Company's securities.
B. In connection with the purchase and sale of the Company's
securities, the Company and the Investors desire to provide for the rights of
the Investors with respect to registration of the common stock of the Company,
no par value per share (the "Common Stock") issued upon conversion or exercise
of the securities all according to the terms of this Agreement.
AGREEMENT
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THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
1.1 "Commission" shall mean the Securities and Exchange
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Commission or any other federal agency at the time administering the Securities
Act.
1.2 "Common Stock Outstanding" shall mean the aggregate of all
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Common Stock outstanding and all Common Stock issuable upon (i) shares of stock
convertible into or exchangeable for Common Stock, including Preferred Stock,
and (ii) exercise of all outstanding rights, warrants or options to subscribe
for or purchase Common Stock or any securities set forth in (i) hereof.
1.3 "Convertible Securities" shall mean any warrants or shares
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of stock of the Company convertible into or exchangeable for Common Stock.
1.4 "Form S-3" shall mean Form S-3 issued by the Commission or
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any substantially similar form then in effect.
1.5 "Holder" shall mean any holder of outstanding Registrable
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Securities which have not been sold to the public, but only if such holder is an
Investor or an assignee or transferee of registration rights as permitted by
Section 9.
1.6 "Initiating Holders" shall mean, in the case of a demand
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Registration other than on Form S-3 pursuant to
Section 2.1, Holders who in the aggregate hold at least fifty percent (50%) of
the Registrable Securities; and in the case of a demand Registration on Form S-3
effected pursuant to Section 2.3, Holders who in the aggregate hold at least
seventy percent (70%) of the Registrable Securities.
1.7 "Material Adverse Event" shall mean an occurrence having a
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consequence that either (a) is materially adverse as to the business,
properties, prospects or financial condition of the Company or (b) is reasonably
foreseeable, has a reasonable likelihood of occurring, and if it were to occur
might materially adversely affect the business, properties, prospects or
financial condition of the Company.
1.8 The terms "Register", "Registered" and "Registration" refer
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to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
1.9 "Registrable Securities" shall mean (i) all Common Stock not
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previously sold to the public which is (A) issued, or issuable upon conversion
or exercise of any of the Company's Convertible Securities purchased by or
issued to the Investors, or (B) issued pursuant to stock splits, stock dividends
and similar distributions with respect to securities referred to in clauses (A)
or (B) of this paragraph (i), and (ii) any securities of the Company granted
registration rights pursuant to Section 11 of this Agreement.
1.10 "Registration Expenses" shall mean all expenses incurred by
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the Company in complying with Sections 2 or 3 of this Agreement, including,
without limitation, all federal and state registration, qualification and filing
fees, printing expenses, fees and disbursements of counsel for the Company, Blue
Sky fees and expenses, and the expense of any special audits incident to or
required by any such registration. Registration Expenses shall not include
Selling Expenses.
1.11 "Securities Act" shall mean the Securities Act of 1933, as
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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.
1.12 "Selling Expenses" shall mean all underwriting discounts,
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selling commissions and special counsel fees of the selling stockholder(s)
applicable to the sale of Registrable Securities pursuant to this Agreement.
2. Demand Registration.
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2.1 Request for Registration on Form Other than Form S-3.
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Subject to the terms of this Agreement, in the event that the Company shall
receive from the Initiating Holders at any time after the Company's initial
public offering of shares of
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Common Stock under a Registration Statement, the Initiating Holders may make one
written request that the Company effect any Registration with respect to all or
a part of the Registrable Securities on a Form other than Form S-3 for an
offering of at least twenty percent (20%) of the then outstanding Registrable
Securities (or any lesser percent if the reasonably anticipated aggregate
offering price to the public would exceed $5,000,000), the Company shall (i)
promptly give written notice of the proposed Registration to all other Holders,
and shall (ii) as soon as practicable, use its best efforts to effect
Registration of the Registrable Securities specified in such request, together
with any Registrable Securities of any Holder joining in such request as are
specified in a written request given within twenty (20) days after written
notice from the Company. The Company shall not be obligated to take any action
to effect any such Registration pursuant to this Section 2.1 within six (6)
months of the effective date of a Registration initiated by the Company.
2.2 Right of Deferral of Registration on Form Other than Form S-
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3. If the Company shall furnish to all such Holders who joined in the request a
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certificate signed by the Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company for any Registration to be effected as
requested under Section 2.1, the Company shall have the right, exercisable one
(1) time only with respect to the demand registration request, to defer the
filing of a Registration Statement with respect to such offering for a period of
not more than one hundred twenty (120) days from delivery of the request of the
Initiating Holders.
2.3 Request for Registration on Form S-3. Subject to the terms
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of this Agreement, in the event that the Company receives from Holders who in
the aggregate hold at least fifty percent (50%) of the then outstanding
Registrable Securities a written request that the Company effect any
Registration on Form S-3 (or any successor form to Form S-3 regardless of its
designation) at a time when the Company is eligible to register securities on
Form S-3 (or any successor form to Form S-3 regardless of its designation) for
an offering of Registrable Securities with an aggregate offering price of not
less than $500,000, the Company will promptly give written notice of the
proposed Registration to all the Holders and will as soon as practicable use its
best efforts to effect Registration of the Registrable Securities specified in
such request, together with all or such portion of the Registrable Securities of
any Holder joining in such request as are specified in a written request
delivered to the Company within thirty (30) days after written notice from the
Company of the proposed Registration. There shall be no limit to the number of
occasions on which the Company shall be obligated to effect Registration under
this Section 2.3.
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2.4 Registration of Other Securities in Demand Registration.
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Any Registration Statement filed pursuant to the request of the Initiating
Holders under this Section 2 may, subject to the provisions of Section 2.5,
include securities of the Company other than Registrable Securities.
2.5 Underwriting in Demand Registration.
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2.5.1 Notice of Underwriting. If the Initiating Holders
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intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2, and the Company shall include such
information in the written notice referred to in Section 2.1 or 2.3. The right
of any Holder to Registration pursuant to Section 2 shall be conditioned upon
such Holder's agreement to participate in such underwriting and the inclusion of
such Holder's Registrable Securities in the underwriting.
2.5.2 Inclusion of Other Holders in Demand Registration.
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If the Company, officers or directors of the Company holding Common Stock other
than Registrable Securities or holders of securities other than Registrable
Securities, request inclusion in such Registration, the Initiating Holders, to
the extent they deem advisable and consistent with the goals of such
Registration, shall, on behalf of all Holders, offer to any or all of the
Company, such officers or directors and such holders of securities other than
Registrable Securities that such securities other than Registrable Securities be
included in the underwriting and may condition such offer on the acceptance by
such persons of the terms of this Section 2. In the event, however, that the
number of shares so included exceeds the number of shares of Registrable
Securities included by all Holders, such Registration shall be treated as
governed by Section 3 hereof rather than Section 2, and it shall not count as a
Registration for purposes of Section 2.1 hereof.
2.5.3 Selection of Underwriter in Demand Registration. The
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Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement with
the representative ("Underwriter's Representative") of the underwriter or
underwriters selected for such underwriting by the Holders of a majority of the
Registrable Securities being registered by the Initiating Holders and agreed to
by the Company.
2.5.4 Marketing Limitation in Demand Registration. In the
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event the Underwriter's Representative advises the Initiating Holders in writing
that market factors (including, without limitation, the aggregate number of
shares of Common Stock requested to be Registered, the general condition of the
market, and the status of the persons proposing to sell securities pursuant to
the Registration) require a limitation of the number of shares to be
underwritten, then (i) first, the
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Common Stock (other than Registrable Securities) held by officers or directors
of the Company, (ii) next, the securities other than Registrable Securities, and
(iii) last, the securities requested to be registered by the Company, shall be
excluded from such Registration to the extent required by such limitation. If a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the Registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities entitled to inclusion in such Registration
held by such Holders at the time of filing the Registration Statement. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 2.5.4 shall be included in such Registration Statement.
2.5.5 Right of Withdrawal in Demand Registration. If any
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Holder of Registrable Securities, or a holder of other securities entitled (upon
request) to be included in such Registration, disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the Underwriter's Representative and the Initiating Holders
delivered at least seven (7) days prior to the effective date of the
Registration Statement. The securities so withdrawn shall also be withdrawn from
the Registration Statement.
2.6 Blue Sky in Demand Registration. In the event of any
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Registration pursuant to Section 2, the Company will exercise its best efforts
to Register and qualify the securities covered by the Registration Statement
under such other securities or Blue Sky laws of such states or other
jurisdictions (not exceeding twenty (20) at the expense of the Company) as shall
be reasonably appropriate for the distribution of such securities; provided,
however, that (i) the Company shall not be required to qualify to do business or
to file a general consent to service of process in any such jurisdictions, and
(ii) notwithstanding anything in this Agreement to the contrary, in the event
any jurisdiction in which the securities shall be qualified imposes a non-
waivable requirement that expenses incurred in connection with the qualification
of the securities be borne by selling stockholders, such expenses shall be
payable pro rata by selling stockholders.
3. Piggyback Registration.
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3.1 Notice of Piggyback Registration and Inclusion of
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Registrable Securities. Subject to the terms of this Agreement, in the event the
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Company decides to Register any of its Common Stock (either for its own account
or the account of a Holder(s) exercising its respective demand registration
rights), on a form that would be suitable for a registration involving solely
Registrable Securities, the Company will: (i) promptly give each Holder written
notice thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable Blue
Sky or other
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state securities compliance), and (ii) include in such Registration (and any
related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within fifteen (15) days
after delivery of such written notice from the Company.
3.2 Underwriting in Piggyback Registration.
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3.2.1 Notice of Underwriting in Piggyback Registration. If
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the Registration of which the Company gives notice is for a Registered public
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 3.1. In such event the
right of any Holder to Registration shall be conditioned upon such underwriting
and the inclusion of such Holder's Registrable Securities in such underwriting
to the extent provided in this Section 3. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders distributing their securities through such underwriting,)
enter into an underwriting agreement with the Underwriter's Representative for
such offering. The Holders shall have no right to participate in the selection
of the underwriters for an offering pursuant to this Section 3.
3.2.2 Marketing Limitation in Piggyback Registration. In
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the event the Underwriter's Representative advises the Holders seeking
registration of Registrable Securities pursuant to Section 3 in writing that
market factors (including, without limitation, the aggregate number of shares of
Common Stock requested to be Registered, the general condition of the market,
and the status of the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be underwritten,
the Underwriter's Representative (subject to the allocation priority set forth
in Section 3.2.3) may:
(a) in the case of the Company's initial Registered public
offering, exclude some or all Registrable Securities from such registration and
underwriting; and
(b) in the case of any subsequent Registered public
offering, limit the number of shares of Registrable Securities to be included in
such Registration and underwriting to not less than thirty-three and one-third
percent (33-1/3%) of the securities included in such Registration (based on
aggregate market values).
3.2.3 Allocation of Shares in Piggyback Registration. In
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the event that the Underwriter's Representative limits the number of shares to
be included in a Registration pursuant to Section 3.2.2, the number of shares to
be included in such Registration shall be allocated (subject to Section 3.2.2)
in the following manner: The shares (other than Registrable
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Securities) held by officers or directors of the Company shall be excluded from
such registration and underwriting to the extent required by such limitation. If
a limitation of the number of shares is still required after such exclusion, the
number of shares that may be included in the Registration and underwriting by
selling stockholders shall be allocated among all other Holders thereof and
other holders of securities other than Registrable Securities requesting and
legally entitled to include shares in such Registration, in proportion, as
nearly as practicable, to the respective amounts of securities (including
Registrable Securities) which such Holders and such other holders would
otherwise be entitled to include in such Registration. No Registrable Securities
or other securities excluded from the underwriting by reason of this Section
3.2.3 shall be included in the Registration Statement.
3.2.4 Withdrawal in Piggyback Registration. If any Holder
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disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriter delivered at
least seven (7) days prior to the effective date of the Registration Statement.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such Registration.
3.3 Blue Sky in Piggyback Registration. In the event of any
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Registration of Registrable Securities pursuant to Section 3, the Company will
exercise its best efforts to qualify the securities covered by the Registration
Statement under such other securities or Blue Sky laws of such states or other
jurisdictions (not exceeding twenty (20) unless otherwise agreed to by the
Company) as shall be reasonably appropriate for the distribution of such
securities; provided, however, that (i) the Company shall not be required to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions, and (ii) notwithstanding anything in this
Agreement to the contrary, in the event any jurisdiction in which the securities
shall be qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
stockholders, such expenses shall be payable pro rata by selling stockholders.
4. Expense of Registration. All Registration Expenses incurred in
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connection with the Registrations pursuant to Sections 2 and 3 shall be borne
by the Company. All Registration Expenses incurred in connection with any other
registration, qualification or compliance, including any Registration on Form S-
3, shall be borne by the Company. Notwithstanding the above, the Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2 if the registration request is subsequently withdrawn at
the request of the holders of a majority of the Registrable Securities to be
registered (which Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to a single
demand registration pursuant to Section 2;
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provided further, however, that if at the time of such withdrawal, the Holders
have learned of a Material Adverse Event with respect to the condition, business
or prospects of the Company not known to the Holders at the time of their
request, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to Section 2. All Selling Expenses shall be
borne by the holders of the securities registered pro rata on the basis of the
number of shares registered.
5. Registration Procedures. The Company will keep each Holder whose
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Registrable Securities are included in any Registration pursuant to this
Agreement advised as to the initiation and completion of such Registration. At
its expense the Company will: (a) use its best efforts to keep such Registration
effective for a period of one hundred twenty (120) days or until the Holder or
Holders have completed the distribution described in the Registration Statement
relating thereto, whichever first occurs; and (b) furnish such number of
prospectuses (including preliminary prospectuses) and other documents as a
Holder from time to time may reasonably request.
6. Information Furnished by Holder. It shall be a condition
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precedent of the Company's obligations under this Agreement that each Holder of
Registrable Securities included in any Registration furnish to the Company
such information regarding such Holder and the distribution proposed by such
Holder or Holders as the Company may reasonably request.
7. Indemnification.
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7.1 Company's Indemnification of Holders. To the extent
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permitted by law, the Company will indemnify each Holder, each of its officers,
directors and constituent partners, legal counsel for the Holders, and each
person controlling such Holder, with respect to which Registration,
qualification or compliance of Registrable Securities has been effected pursuant
to this Agreement, and each underwriter, if any, and each person who controls
any underwriter against all claims, losses, damages or liabilities (or actions
in respect thereof) to the extent such claims, losses, damages or liabilities
arise out of or are based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other document
(including any related Registration Statement) incident to any such
Registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such Registration, qualification or compliance;
and the Company will reimburse each such Holder, each such underwriter and each
person who controls any such Holder or underwriter, for any legal and any other
expenses reasonably incurred in connection with
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investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the indemnity contained in this Section 7.1 shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); and provided, further, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon any untrue
statement or omission based upon written information furnished to the Company by
such Holder, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Company.
7.2 Holder's Indemnification of Company. To the extent
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permitted by law, each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such Registration,
qualification or compliance is being effected pursuant to this Agreement,
indemnify the Company, each of its directors and officers, each legal counsel
and independent accountant of the Company, each underwriter, if any, of the
Company's securities covered by such a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, and each other such Holder, each of its officers, directors and constituent
partners and each person controlling such other Holder, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based upon any untrue statement (or alleged untrue statement) of a material
fact contained in any such Registration Statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by such Holder of any rule or
regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with any
such Registration, qualification or compliance; and will reimburse the Company,
such Holders, such directors, officers, partners, persons, law and accounting
firms, underwriters or control persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, 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 such Holder and
stated to be specifically for use in connection with the offering of securities
of the Company; provided, however, that each Holder's liability under this
Section 7.2 shall not exceed such Holder's proceeds from the offering of
securities made in connection with such Registration.
7.3 Indemnification Procedure. Promptly after receipt by an
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indemnified party under this Section 7 of notice of
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the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof and
generally summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided, however, that
the indemnifying party shall be entitled to select counsel for the defense of
such claim with the approval of any parties entitled to indemnification, which
approval shall not be unreasonably withheld; provided further, however, that if
either party reasonably determines that there may be a conflict between the
position of the Company and the Investors in conducting the defense of such
action, suit or proceeding by reason of recognized claims for indemnity under
this Section 7, then counsel for such party shall be entitled to conduct the
defense to the extent reasonably determined by such counsel to be necessary to
protect the interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
of the indemnifying party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the indemnified party
under this Section 7, but the omission so to notify the indemnifying party will
not relieve such party of any liability that such party may have to any
indemnified party otherwise other than under this Section 7.
8. Market Stand-off. Each Holder hereby agrees that, if so
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requested by the Company and the Underwriter's Representative (if any), such
Holder shall not sell or otherwise transfer any Registrable Securities or other
securities of the Company during the one hundred and eighty (180) day period
following the effective date of a Registration Statement of the Company filed
under the Securities Act; provided that such restriction shall only apply to the
first two (2) Registration Statements of the Company to become effective which
include securities to be sold on behalf of the Company to the public in an
underwritten offering.
9. Limitations on Registration Rights Granted to Other Securities.
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From and after the date of this Agreement, the Company shall not enter into any
agreement with any holder or prospective holder of any securities of the Company
providing for the granting to such holder of any information or Registration
rights, except that, with the consent of the Holders of eighty percent (80%) of
the aggregate Registrable Securities then outstanding, additional holders may be
added as parties to this Agreement with regard to any or all securities of the
Company held by them. Any such additional parties shall execute a counterpart of
this Agreement, and upon execution by such additional parties and by the
Company, shall be considered an Investor for all purposes of this Agreement. The
additional parties and the additional Registrable Securities shall be identified
in an amendment to Schedule A hereto.
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10. Transfer of Rights. The right to cause the Company to register
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securities granted by the Company to the Investors under this Agreement may be
assigned by any Holder to a transferee or assignee of any Convertible Securities
or Registrable Securities not sold to the public acquiring at least twenty (20)
percent of such Holder's Registrable Securities (equitably adjusted for any
stock splits, subdivisions, stock dividends, changes, combinations or the like)
or in a transaction in which the cost of such shares to the transferee is at
least $150,000; provided, however, that (i) the Company must receive written
notice prior to the time of said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
information and Registration rights are being assigned, and (ii) the transferee
or assignee of such rights must not be a person deemed by the Board of Directors
of the Company, in its best judgment, to be a competitor or potential competitor
of the Company. Notwithstanding the limitation set forth in the foregoing
sentence respecting the minimum number of shares which must be transferred, any
Holder which is a partnership may transfer such Holder's Registration rights to
such Holder's constituent partners without restriction as to the number or
percentage of shares acquired by any such constituent partner.
11. No-Action Letter or Opinion of Counsel in Lieu of Registration:
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Conversion of Preferred Stock. Notwithstanding anything else in this Agreement,
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if the Company shall have obtained from the Commission a "no-action" letter in
which the Commission has indicated that it will take no action if, without
Registration under the Securities Act, any Holder disposes of Registrable
Securities covered by any request for Registration made under this Agreement in
the specific manner in which such Holder proposes to dispose of the Registrable
Securities included in such request or if in the opinion of counsel for the
Company concurred in by counsel for such Holder, which concurrence shall not be
unreasonably withheld, no Registration under the Securities Act is required in
connection with such disposition, the Shares included in such request shall not
be eligible for Registration under this Agreement; provided, however, that any
Registrable Securities not so disposed of shall be eligible for Registration in
accordance with the terms of this Agreement with respect to other proposed
dispositions to which this Section 13 does not apply. The Registration rights of
the Holders of the Shares set forth in this Agreement are conditioned upon the
conversion of the Shares with respect to which registration is sought into
Common Stock prior to the effective date of the Registration Statement.
12. Miscellaneous.
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12.1 Entire Agreement: Successors and Assigns. This Agreement
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constitutes the entire contract among the Company, the Investors, the Founders
and the Key Employees relative to the subject matters hereof. Any previous
agreement between or among the Company, the Investors, the Founders or the Key
Employees
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concerning Registration rights and rights of first offer is superseded by this
Agreement. Subject to the exceptions specifically set forth in this Agreement,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective executors, administrators, heirs, successors and
assigns of the parties. A transferee other than for value of any Founder or Key
Employee Shares shall take such shares subject to the restrictions on transfer
contained herein.
12.2 Governing Law. Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents.
12.3 Counterparts. This Agreement may be executed in two (2) or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.4 Headings. The headings of the Sections of this Agreement are
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for convenience and shall not by themselves determine the interpretation of this
Agreement.
12.5 Notices. Any notice required or permitted hereunder shall be
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given in writing and shall be conclusively deemed effectively given upon
personal delivery, or five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed (i) if to the Company,
as set forth below the Company's name on the signature page of this Agreement,
and (ii) if to an Investor, at such Investor's address as set forth on Schedule
A, or at such other address as the Company or such Investor may designate by ten
(10) days' advance written notice to the Investors or the Company, respectively.
12.6 Amendment of Agreement. Any provision of this Agreement may
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be amended only by a written instrument signed by the Company and by persons
holding at least eighty percent (80%) of the Registrable Securities as defined
in Section 1.9 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The Company: THE SHOPPERS' SOURCE
a California corporation
By: _________________________
Name: Xxxxxx X. XxXxxxx
Its: President/CEO
Address: THE SHOPPERS' SOURCE
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
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Attn: Chief Executive Officer
The Investors:
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INVESTORS SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
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