EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into
this 8th day of June, 2000, by and among XXX.XXX, INC., a Delaware
corporation (the "COMPANY"), and VULCAN VENTURES INCORPORATED, a Washington
corporation ("VULCAN").
A. Concurrently with the execution of this Agreement, Vulcan is
purchasing 27,437 shares of the Company's Series A Convertible Preferred
Stock, $.001 par value (the "SERIES A PREFERRED STOCK"), convertible into
shares of the Company's Common Stock, $.001 par value (the "COMMON STOCK"),
pursuant to that certain Stock Purchase Agreement dated June 8, 2000, between
the Company and Vulcan (the "STOCK PURCHASE AGREEMENT"). Pursuant to the
Stock Purchase Agreement, the Company is also issuing to Vulcan a warrant
(the "VULCAN WARRANT") to purchase additional shares of the Company's Common
Stock. Capitalized terms used herein but not defined shall have the meanings
set forth for such terms in the Stock Purchase Agreement.
B. The parties hereto desire to set forth the respective rights of
the Company and Vulcan with respect to the registration of the shares of the
Company's Common Stock that Vulcan may acquire.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 As used in this Agreement, the following capitalized terms
shall have the following meanings:
AFFILIATE: A Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, Vulcan; provided that such control relationship involves direct or
indirect ownership of at least a majority of the outstanding voting interests
of the applicable Person. Without limiting the generality of the foregoing,
it is understood that any entity that is majority owned (directly or
indirectly) by a Person that directly or indirectly owns a majority of the
outstanding voting interests of Vulcan shall be an Affiliate of Vulcan.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended
from time to time.
FORM S-3 means such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities
Act subsequently adopted by the SEC which permits inclusion or incorporation
of substantial information by reference to other documents filed by the
Company with the SEC.
HOLDERS: Vulcan, all of its Affiliates (including without
limitation Xxxx X. Xxxxx), any Person to which Registrable Securities are
transferred by Vulcan and its Affiliates for purposes of Xxxx X. Xxxxx'x
estate planning, and any Person to whom
Registrable Securities are transferred by Vulcan and its Affiliates that has
registration rights pursuant to Section 10 below.
MAJORITY HOLDERS: Holders of a majority of the Registrable
Securities held by all Holders at the time of any request for registration
pursuant to Section 2.1(a).
PERSON: An individual, corporation, partnership, limited
liability company, trust, unincorporated organization or a government or any
agency or political subdivision thereof.
PROSPECTUS: The definitive prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
REGISTRABLE SECURITIES: Those shares of Common Stock now or
hereafter owned of record or beneficially by the Holders (including, without
limitation, any shares of Common Stock acquired by the Holders upon
conversion of the Series A Preferred Stock or upon exercise of the Vulcan
Warrant) plus any shares received with respect to or in replacement of such
shares by reason of splits, dividends and recapitalizations and other changes
in the Company's capital structure, but excluding any shares which may be
then immediately sold to the public without registration pursuant to Rule 144
under the Securities Act.
REGISTRATION EXPENSES: See Section 6 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company filed under the Securities Act which covers Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended from
time to time.
SELLING HOLDERS: Holders of Registrable Securities who seek to
sell such securities under any Registration Statement.
2. REGISTRATION RIGHTS.
2.1 REGISTRATION UPON REQUEST.
(a) At any time beginning on the later of the date that is
180 days after the date hereof, the Majority Holders may request by written
notice (a "DEMAND NOTICE") to the Company that the Company effect the
registration under the Securities Act of a number of Registrable Securities
at least equal to 5% of the shares of the Common Stock then outstanding,
stating the intended method of disposition of such shares. The
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registration rights contemplated by this Section 2.1 may be exercised only
three (3) times by the Majority Holders during the term of this Agreement;
PROVIDED, HOWEVER, the request for registration shall not be deemed made if
either (i) the Registration Statement does not become effective under the
Securities Act (including without limitation if the Selling Holders withdraw
the Registration Statement, provided in case of such withdrawal the request
for registration will be deemed made by the Majority Holders unless the
Selling Holders reimburse the Company for its reasonable expenses in
connection with such Registration Statement) or a stop order, injunction or
other order interferes or prevents the contemplated method of distribution or
(ii) the number of Registrable Securities requested to be included in the
registration is reduced by 15% or more pursuant to Section 2.1(c); and
PROVIDED FURTHER that such a demand may not be exercised more than once in
any twelve-month period (subject to the same exception set forth in the
previous proviso). Within five (5) business days after receipt of a Demand
Notice, the Company shall notify all other Holders and offer to them the
opportunity to include their Registrable Securities in such registration.
(b) Upon receipt of such request, the Company shall, as
soon as practicable, prepare and file a Registration Statement with the SEC
on an appropriate form under the Securities Act with respect to all of the
Registrable Securities that Holders of such securities have requested that
the Company register, and use its commercially reasonable efforts to cause
such Registration Statement to become effective.
(c) In connection with any Registration Statement filed in
response to such request, the Company, at its option, may include a primary
offering of additional shares of Common Stock and/or may include shares to be
sold by other stockholders of the Company; PROVIDED, HOWEVER, that if the
managing underwriter of such offering reasonably determines in good faith and
delivers to the Selling Holders a written opinion that the number of shares
otherwise to be included in the Registration Statement is such that the
success of the underwritten offering would be materially and adversely
affected and, accordingly, the total number of shares to be included in the
Registration Statement is reduced to the amount recommended by such
underwriter, then (i) unless the Registration Statement includes all of the
Registrable Securities designated for sale by all Selling Holders
participating in the demand registration pursuant to Section 2.1(a), the
Registration Statement shall not include any shares to be offered by the
Company or sold by other stockholders (including other Holders exercising
incidental registration rights pursuant to Section 2.2), and (ii) if the
Registration Statement does not include all of the Registrable Securities
designated for sale by such Selling Holders, the number of Registrable
Securities included in the Registration Statement shall be allocated among
such Selling Holders pro rata (based on the number of Registrable Securities
held by each).
(d) Notwithstanding the foregoing, upon delivery of
written notice (deliverable no later than 10 days after delivery of the
Demand Notice) to the person(s) who delivered the Demand Notice, the Company
shall be entitled to postpone filing of the Registration Statement, and may
withhold efforts to cause the Registration Statement to become effective, for
a reasonable period of time (not to exceed the shorter of 90 days or the
Company's termination of consideration of a Company Offering (as defined
below) or completion of any Transaction (as defined below), as the case may
be) if (i) the Company is
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contemplating filing a registration statement in connection with the offering
of its securities (a "COMPANY OFFERING") within 90 days of delivery of the
Demand Notice, or (ii) the Company determines in good faith that a
registration pursuant to the Demand Notice might interfere with or adversely
affect the negotiations or completion of any transaction that is being
contemplated by the Company at the time the right to delay is exercised (a
"TRANSACTION"); PROVIDED, HOWEVER, that such deferral may not be utilized
more than once in any twelve (12) month period.
2.2 INCIDENTAL REGISTRATION.
(a) If at any time after the date hereof the Company
proposes to register any shares of Common Stock under the Securities Act
(except pursuant to a registration statement (i) on Form X-0, Xxxx X-0 or
comparable forms, or (ii) with respect to an employee benefit plan, or (iii)
solely in connection with a Rule 145 transaction under the Securities Act),
or if any other stockholder is being afforded an opportunity to register
shares of Common Stock (including pursuant to Section 2.1(a)), the Company
will at each such time give written notice to the Holders (other than Holders
participating in a demand registration pursuant to Section 2.1(a)) as
provided in Section 11.4 hereof of its intention to do so. Within twenty (20)
days after receipt of such notice, such Holders may request that the Company
register all or part of the Registrable Securities, stating in such request
the intended method of distribution of such securities (the "DESIGNATED
SECURITIES"). Upon receipt of such request, the Company shall use its
commercially reasonable efforts to effect the registration of the Designated
Securities by including the Designated Securities in such Registration
Statement.
(b) In the event that securities of the same class as the
Registrable Securities are being registered by the Company in such
Registration Statement and such securities as well as any of the Designated
Securities are to be distributed in an underwritten offering, such Designated
Securities shall be included in such underwritten offering on the same terms
and conditions as the securities being issued by the Company for distribution
pursuant to such underwritten offering; PROVIDED, HOWEVER, that if the
managing underwriter of such underwritten offering reasonably determines in
good faith and advises the parties that the inclusion in such underwritten
offering of all the Designated Securities would materially and adversely
affect the success of the underwritten offering, then the number of
Designated Securities to be included in the Registration Statement shall be
reduced to the amount recommended in good faith by and set forth in the
opinion of such managing underwriter; PROVIDED, FURTHER, that as to the
Selling Holders exercising incidental registration rights pursuant to this
Section 2.2, such reduction shall be pro rata (based on the number of shares
held by each) with respect to the Designated Securities with other Persons
holding contractual incidental or "piggy-back" registration rights in such
underwritten offering.
(c) No registration effected under this Section 2.2 shall
relieve the Company of its obligations to effect registrations at the request
of the Holders under Section 2.1.
2.3 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders a written request or requests that the Company
effect a registration on
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Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, the
Company will:
(a)promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b)as soon as practicable, use all commercially reasonable
efforts to effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders'
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
twenty (20) days after receipt of such written notice from the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to take any action
to effect any such registration, qualification or compliance pursuant to this
Section 2.3:
(i) If the Company is not qualified as a registrant entitled to
use Form S-3;
(ii) If the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose
to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $2,500,000;
(iii) For the reasons, and under the circumstances described,
in Section 2.1(d), in which event the Company shall have the right to defer
the filing of the Form S-3 registration statement for a period of not more
than 90 days after receipt of the request of the Holder or Holders under this
Section 2.3; PROVIDED, HOWEVER, that such deferral may not be utilized more
than once in any twelve (12) month period;
(iv) If the Company has, within the six (6) month period
preceding the date of such request, previously effected a registration
pursuant to Section 2.1 or on Form S-3 pursuant to this Section 2.3; or
(v) Within 180 days after the effective date of any
registration statement filed by the Company in connection with a registered
public offering of the Company's securities solely for cash, other than a
registration (i) on Form X-0, X-0 or comparable forms, or (ii) with respect
to an employee benefit plan, or (iii) solely in connection with a Rule 145
transaction under the Securities Act.
3. HOLD-BACK AGREEMENTS.
3.1 RESTRICTIONS ON PUBLIC SALE BY HOLDERS. Each Selling Holder
whose Registrable Securities are covered by a Registration Statement filed
pursuant to Section 2 hereof agrees, if requested by the managing
underwriters in an underwritten offering, not to effect any public sale or
distribution of securities of the Company of the same class as the securities
included in such Registration Statement during a period, not to exceed 90
days, beginning on the closing date of each underwritten offering made
pursuant to such
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Registration Statement, to the extent timely notified in writing by the
managing underwriters.
3.2 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees not to effect any public sale or distribution of its Common
Stock, during a period, not to exceed 45 days, beginning on the closing date
of an underwritten offering made pursuant to a Registration Statement filed
under Section 2 hereof to the extent timely notified in writing by the
managing underwriters (except as part of such underwritten registration or
pursuant to registrations on Forms S-4 or S-8 or any successor form to such
Forms).
4. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use
its commercially reasonable efforts to effect such registration to permit the
sale of such Registrable Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company will:
4.1 PREPARATION OF REGISTRATION STATEMENT. Prepare and file
with the SEC, within the time periods specified in Section 2, a Registration
Statement on such form as may be appropriate under the Securities Act, and
use its best efforts to cause such Registration Statement to become effective.
4.2 MAINTAINING EFFECTIVENESS. Promptly prepare and file with
the SEC such amendments to the Registration Statement as may be necessary to
keep such Registration Statement effective for a period of not more than 180
days (or, in the case of an underwritten offering, no more than five (5)
business days), or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold.
4.3 NOTIFICATION. Immediately notify the Selling Holders and
the managing underwriters, if any, and (if requested by any such Person)
confirm such advice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceeding for that purpose, (iii) of the receipt by the Company of
any notification with respect to the suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, and (iv) of the happening
of any event which makes any statement made in the Registration Statement,
the Prospectus or any document incorporated therein by reference untrue or
which requires the making of any changes in the Registration Statement, the
Prospectus, or any document incorporated therein by reference so that they
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statement therein not misleading.
4.4 STOP ORDERS. Make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement or the qualification of any Registrable Securities for sale in any
jurisdiction at the earliest possible moment.
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4.5 CONSULTATION WITH HOLDERS. Prior to the filing of any
Registration Statement or amendment thereto, provide copies of such document
to the Selling Holders and to the managing underwriters, if any, make the
Company's representatives and the Company's counsel available for discussion
of such document and make such changes in such document relating to the
Selling Holders prior to the filing thereof as such Selling Holders, counsel
for such Selling Holders, or underwriters may reasonably request.
4.6 COPIES OF REGISTRATION STATEMENTS. Furnish to each Selling
Holder and each managing underwriter, if any, without charge, at least one
originally executed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference).
4.7 PROSPECTUSES. Deliver to each Selling Holder and the
underwriters, if any, without charge, as many copies of the Prospectus (and
each preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request so long as the Registration Statement to which
such Prospectus or any amendment or supplement thereto relates is effective.
4.8 BLUE SKY LAWS. Prior to any public offering of Registrable
Securities, use its commercially reasonable efforts to register or qualify or
cooperate with the Selling Holders, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions within the United States as any Selling Holder
or underwriter reasonably requests, and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; PROVIDED,
HOWEVER, that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or taxation in
any such jurisdiction where it is not then so subject.
4.9 AMENDMENTS UPON CHANGES. Upon the occurrence of any event
contemplated by Sections 4.3(ii), (iii) or (iv) or 4.4 above, prepare, as
promptly as practicable, a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading.
4.10 UNDERWRITING AGREEMENTS. Enter into such customary
agreements (including an underwriting agreement) and take all such other
actions reasonably required in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities.
4.11 COMPLIANCE WITH LAWS; SECTION 11(a). Otherwise use its
best efforts to comply with all applicable federal and state securities laws
(including without limitation the rules and regulations of the SEC), and make
generally available to its security holders
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earning statements satisfying the provisions of Section 11(a) of the
Securities Act no later than 45 days after the end of each 12-month period
(or within 90 days after the end of a fiscal year).
4.12 OPINIONS. At the request of any Selling Holder, use its
commercially reasonable efforts to furnish on the date that the Registrable
Securities are delivered to that Holder and any underwriter for sale in
connection with a registration pursuant to this Agreement (i) an opinion of
the counsel representing the Company for the purposes of such registration,
and (ii) a letter from the independent certified public accountants of the
Company, each dated such date and in form and substance as is customarily
given by counsel and independent certified public accountants to underwriters
in an underwritten public offering, addressed to any Selling Holders'
underwriter and to the Selling Holders.
5. SELLING HOLDERS' OBLIGATIONS.
5.1 PROVISION OF INFORMATION. The Company may require each
Selling Holder of Registrable Securities as to which any registration is
being effected to furnish to the Company such information regarding the
distribution of such securities by, and such other information relevant to,
the Selling Holder for inclusion in such Registration Statement, as the
Company may from time to time reasonably request in writing.
5.2 DISCONTINUED USE OF PROSPECTUS. Each Holder of Registrable
Securities agrees by execution of this Agreement that, upon receipt of any
written notice from the Company of the happening of any event of the kind
described in clauses (ii), (iii) or (iv) of Section 4.3 or Section 4.4
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4.9 hereof, or until it is advised
in writing (the "ADVICE") by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental filings
which are incorporated by reference in such Prospectus, and, if so directed
by the Company such Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event the Company shall give any
such notice, the time period mentioned in Section 4.2 hereof shall be
extended by the number of days during the period from and including the date
of the giving of such notice to and including the date when each Selling
Holder shall have received the copies of the supplemental or amended
Prospectus contemplated by Section 4.9 hereof or the Advice.
5.3 UNDERWRITING AGREEMENT. Each Selling Holder participating
in an underwritten offering pursuant to Section 2.1 or 2.2 will enter into a
customary underwriting agreement on terms reasonably satisfactory to the
managing underwriter.
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6. REGISTRATION EXPENSES. The Company shall bear all expenses
other than Selling Holder Expenses (defined below) incurred in connection
with any Registration Statement, including without limitation all
registration and filing fees, fees with respect to any filings required to be
made with the National Association of Securities Dealers, listing fees
relative to any stock exchange or national market system, fees and expenses
of compliance with state securities or blue sky laws (including reasonable
fees and expenses of counsel for the underwriters in connection therewith),
printing expenses, fees and disbursements of counsel for the Company, and
fees and disbursements of all independent public accountants of the Company.
Each Selling Holder shall bear his or its pro rata share of any Selling
Holder Expenses. "SELLING HOLDER EXPENSES" shall consist of and be limited to
(i) the Selling Holder's legal costs, including the fees and expenses of any
counsel selected by the Selling Holder to represent him or it, and (ii) the
proportionate share of brokerage or underwriting commissions attributable to
the Selling Holder's shares.
7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each Holder
of Registrable Securities, each Person who controls such Holder (within the
meaning of the Securities Act or the Exchange Act) (a "CONTROLLING PERSON"),
and each officer, director, employee and agent of such Holder and each
controlling person and each underwriter or selling agent (the "INDEMNIFIED
PARTIES") from and against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus
or any amendment or supplement thereto or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as (i) the Company
has demonstrated that the same are caused by or contained in any information
furnished to the Company by such Holder, expressly for use therein, or (ii)
the Company has advised such Holders' Representative in writing of a Section
4.3(iv) event and the Holder has sold Registrable Securities notwithstanding
receipt of such notice prior to receipt of a supplement or amended Prospectus
pursuant to Section 4.9 herein; PROVIDED, HOWEVER, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
preliminary prospectus if (i) such Holder failed to send or deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the
sale of Registrable Securities and (ii) the Prospectus would have corrected
such untrue statement or omission; PROVIDED, FURTHER, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to the Prospectus
and if, having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented,
prior to or concurrently with the sale of a Registrable Security to the
Person asserting such loss, claim, damage, liability or expense who purchased
such Registrable Security which is the subject thereof from such Holder. The
indemnity provided herein shall remain in full force
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and effect regardless of any investigation made by or on behalf of an
indemnified party and shall survive the transfer of Registrable Securities by
the Selling Holder.
7.2 INDEMNIFICATION BY HOLDERS. In connection with the
Registration Statements hereunder, each Selling Holder agrees to indemnify
and hold harmless, to the full extent permitted by law, the Company, and each
Person who controls the Company (within the meaning of the Securities Act or
the Exchange Act) and each director, officer, employee and agent of each such
Person from and against any losses, claims, damages, liabilities and expenses
caused by any untrue statement of a material fact or any omission of a
material fact required to be stated in any Registration Statement or
Prospectus or preliminary prospectus or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that the
Company has demonstrated that such untrue statement or omission is contained
in any information or affidavit so furnished by such Holder to the Company
specifically for inclusion in such Registration Statement or Prospectus. In
no event, however, shall the liability of any Selling Holder hereunder be
greater in amount than the dollar amount of the proceeds (net of
underwriters' discounts and commissions) received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be obligated to give to, and shall be entitled
to receive from, underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution customary
indemnities.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled
to indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER,
that any person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but
the fees and expenses of such counsel shall be at the expense of such Person
unless (a) the indemnifying party has agreed to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume within a reasonable
period of time the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of any such
Person, based upon written advice of its counsel, a conflict of interest may
exist between such Person and the indemnifying party with respect to such
claims or such Person may have separate or additional defenses (in which
case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of such claim on behalf of such Person). If such defense is not assumed by
the indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one principal and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
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7.4 CONTRIBUTION. If the indemnification provided for in
Sections 7.1 or 7.2 is unavailable to the indemnified parties in respect of
any losses, claims, damages or liabilities referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) as between the
Company and the Selling Holders on the one hand and the underwriters on the
other hand, in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Holders on the one hand and
the underwriters on the other hand from the offering of all of the securities
sold in the offering, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company and the Selling Holders
on the one hand and of the underwriters on the other hand in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations and (ii)
as between the Company on the one hand and each Selling Holder on the other
hand, in such proportion as is appropriate to reflect the relative fault of
the Company and of each Selling Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Holders on the one
hand and the underwriters on the other hand shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and the Selling Holders bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company
and the Selling Holders on the one hand and of the underwriters on the other
hand 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
the Company and the Selling Holders or by the underwriters. The relative
fault of the Company on the one hand and of each Selling Holder on the other
hand 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 the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 7.4 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 which 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, claims, damages or liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
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 Section 7.4, no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Common Stock underwritten by it
and distributed to the public was offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no Selling Holder shall be required to
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contribute any amount in excess of the amount by which the total price at
which the securities of such Selling Holder were offered to the public
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. The Selling Holders' obligations to contribute
pursuant to this Section 7.4 are several in proportion to the proceeds of the
offering received by each Selling Holder bears to the total proceeds of the
offering received by all the Selling Holders and not joint.
8. SELECTION OF UNDERWRITERS. In connection with any request for
registration under Section 2.1 hereof, the Company shall be entitled to
select the managing underwriter if it is also registering shares on its own
behalf. The Selling Holders, however, shall be entitled to select the
co-managing underwriter. If the Registration Statement covers only shares
being sold by the Selling Holders, then the Selling Holders shall be entitled
to select the managing underwriter, subject to approval by the Company, which
approval shall not be unreasonably withheld. In connection with any
registration under Section 2.2, the Selling Holders shall have no right to
select underwriters.
9. RULE 144 The Company covenants that it will timely file the
reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder, and it will
take such further action as may be reasonably and customarily requested by
any Holder of Registrable Securities, all to the extent required from time to
time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC. The Company also agrees that it will take commercially
reasonable efforts to enable the Holders to utilize Form S-3 for the sale of
their Registrable Securities. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such information and requirements and such other
information as may be reasonably requested in availing any Holder of any rule
or regulation of the SEC or any state securities authorities which permits
the selling of any such securities without registration or pursuant to such
form.
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10. TRANSFER OF REGISTRATION RIGHTS. The registration rights
granted pursuant to this Agreement shall be available to a transferee of any
Registrable Securities if (i) the transferring Holder gives the Company
written notice of such transfer, identifying the name and address of the
transferee and the securities involved; (ii) the transferee agrees in writing
to be bound by the provisions of this Agreement; and (iii) (A) the transferee
is a Vulcan Affiliate, (B) as a result of such transfer, the transferee holds
at least 250,000 shares of Common Stock (assuming conversion into or exercise
for Common Stock, at the conversion rate or exercise price then in effect, if
the transfer is of Series A Preferred Stock or the Vulcan Warrant (in whole
or in part), as applicable) or (C) such transferee is a bank, insurance
company or other financial institution or any assignee of the same that has
received shares of Common Stock as a result of its foreclosure on any shares
of Series A Preferred Stock or Common Stock, that were pledged, mortgaged or
otherwise encumbered by Holder for financing purposes.
11. MISCELLANEOUS.
11.1 REMEDIES. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby waives the defense in any
action for specific performance that a remedy at law would be adequate.
11.2 NO INCONSISTENT AGREEMENTS. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with or limits or impairs the rights granted
to the Holders in this Agreement or otherwise conflicts with the provisions
hereof.
11.3 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
11.4 NOTICES. All notices or other communications hereunder
shall be in writing and shall be given by (i) personal delivery, (ii) courier
or other delivery service which obtains a receipt evidencing delivery, (iii)
registered or certified mail (postage prepaid and return receipt requested),
or (iv) facsimile or similar electronic device, to such address as may be
designated from time to time by the relevant party, and which shall initially
be: (i) in the case of the Company, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxx, XX 00000, Attention: Chief Financial Officer, facsimile (408)
748-2241, with a copy to Xxxxxx Godward LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxx Xxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxx, Esq.; and (ii) in
the case of Vulcan, 000 000xx Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx
00000, attention: Xxxxxxx X. Xxxxx, facsimile (000) 000-0000, with a copy to
Irell & Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, XX
00000, Attn: Xxxxx X. Xxxxx, Esq., facsimile (000) 000-0000. All notices and
other communications shall be deemed to have been given (i) if delivered by
the United States mail, three business days after mailing (five business days
if delivered to an address outside of the United
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States), (ii) if delivered by a courier or other delivery service, one
business day after dispatch (two business days if delivered to an address
outside of the United States), and (iii) if personally delivered or sent by
facsimile or similar electronic device, upon receipt by the recipient or its
agent or employee (which, in the case of a notice sent by facsimile or
similar electronic device, shall be the time and date indicated on the
transmission confirmation receipt). No objection may be made by a party to
the manner of delivery of any notice actually received in writing by an
authorized agent of such party.
11.5 COMPLETE AGREEMENT; MODIFICATIONS. This Agreement and any
documents referred to herein or executed contemporaneously herewith
constitute the parties' entire agreement with respect to the subject matter
hereof and supersede all agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. This Agreement may be amended, altered or modified
only by a writing signed by the Company, the Majority Holders.
11.6 SUCCESSORS AND ASSIGNS. Except as provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of
the parties, their respective successors and permitted assigns, including
without limitation and without the need for an express assignment, subsequent
Holders of Registrable Securities.
11.7 GOVERNING LAW. All questions with respect to the Agreement
and the rights and liabilities of the parties shall be governed by the laws
of the State of Delaware, regardless of the choice of laws provisions of
Delaware or any other jurisdiction.
11.8 ATTORNEYS' FEES. Should any litigation be commenced
(including any proceedings in a bankruptcy court) between the parties hereto
or their representatives concerning any provision of this Agreement or the
rights and duties of any Person or entity hereunder, the party or parties
prevailing in such proceeding shall be entitled, in addition to such other
relief as may be granted, to the reasonable attorneys' fees and court costs
incurred by reason of such litigation.
11.9 HEADINGS. The Article and Section headings in this
Agreement are inserted only as a matter of convenience, and in no way define,
limit, extend or interpret the scope of this Agreement or of any particular
Article or Section.
11.10 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
11.11 GENDER. Throughout this Agreement, as the context may
require, the masculine gender includes the feminine and neuter; and the
neuter gender includes the masculine and feminine.
11.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so
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executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth hereinabove.
XXX.XXX, INC.
By: /s/ Xxxxxx Xxxx
------------------------------
Xxxxxx Xxxx
Chief Financial Officer
VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
President
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