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EXHIBIT 4.5
RAINING DATA CORPORATION fka
OMNIS TECHNOLOGY CORPORATION
REGISTRATION RIGHTS AGREEMENT
AS OF DECEMBER 4, 2000
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RAINING DATA CORPORATION fka
OMNIS TECHNOLOGY CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as
of December 4, 2000, by and among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY
CORPORATION, a Delaware corporation (the "COMPANY") and the undersigned
individuals and entities (collectively, the "HOLDERS").
RECITALS
WHEREAS, the Company and each of the Holders have entered into
certain Common Stock Purchase Agreements of even date herewith (the "PURCHASE
AGREEMENT"), which provide for the sale and issuance by the Company of up to Two
Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par
value (the "COMMON STOCK") and the purchase by each of the Holders of that
number of shares of Common Stock as indicated in the Purchase Agreement of such
Holder;
WHEREAS, in order to induce the Holders to execute and deliver
the Purchase Agreements, the Company desires to grant, and the Holders desire to
be granted, the rights created herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
Definitions. For purposes of this Section 1:
(a) The term "ACT" means the Securities Act of 1933, as amended.
(b) The Term "CLOSING DATE" shall have the same meaning as in the
Purchase Agreement and shall refer to the closing date of the purchase of the
shares of Common Stock under the Purchase Agreement.
(c) The term "COMMON STOCK" means the Common Stock of the
Company.
(d) The term "FORM S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
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(e) The term "HOLDER" means any person owning Registrable
Securities or any assignee thereof in accordance with Section 1.12 hereof.
(f) The term "1934 ACT" means the Securities Exchange Act of
1934, as amended.
(g) The term "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a Registration Statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such Registration Statement or document.
(h) The term "REGISTRATION PERIOD" means the period between the
date of this Agreement and the earlier of (i) the date on which all of the
Registrable Securities have been sold and no further Registrable Securities may
be issued in the future, (ii) the date on which all the Registrable Securities
(in the opinion of the Holder' counsel) may be immediately sold without
registration and without limitation as to volume by each Holder thereof as to
the number of Registrable Securities to be sold, pursuant to Rule 144 or
otherwise, or (iii) the fourth anniversary of the date of this Agreement; plus
the number of days equal to the period or periods of delay or suspension
pursuant to Section 1.14(b) hereof.
(i) The term "REGISTRABLE SECURITIES" means (1) the Common Stock
of the Company issuable or issued to the Holders pursuant to the Purchase
Agreements; (2) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for, or in
replacement of, the shares referenced in (1) above; and (3) any securities into
which any of the foregoing shares are converted or for which any of the
foregoing shares are exchanged pursuant to any reorganization or business
combination in which the Company is involved; excluding in all cases, however,
any Registrable Securities sold by a person (x) in a transaction in which his or
its rights under this Section 1 are not assigned, (y) pursuant to a Registration
Statement that has been declared effective and such Registrable Securities have
been disposed of pursuant to such effective Registration Statement, or (z) in a
transaction in which such Registrable Securities are sold pursuant to Rule 144
(or any similar provision then in force) under the Act.
(j) The term "REGISTRATION STATEMENT" means a registration
statement of the Company filed under the 1934 Act.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
1.1 Mandatory Registration. The Company will file with the SEC a
Registration Statement on Form S-3 registering the Registrable Securities and
any other securities that the Company may determine in its discretion to include
in the Registration Statement within 135 days after the Closing Date of the
purchase of the shares of Common Stock under the
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Purchase Agreements ("Closing Date"). If (a) Form S-3 is not available at that
time and (b) 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 (net of any underwriters' discounts or commissions) of at least
Two Million Dollars ($2,000,000), then the Company will file a Registration
Statement on such other form as is then available to effect a registration of
the Registrable Securities and any other securities that the Company may
determine in its discretion to include in the Registration Statement, subject to
the consent of the Holders of a majority of the Registrable Securities to be
registered thereunder, which consent will not be unreasonably withheld.
1.2 Effectiveness of the Registration Statement. The Company will use
its commercially reasonable efforts to cause the Registration Statement filed
pursuant to Section 1.1 above to be declared effective by the SEC as soon as
practicable after filing, and in any event to be declared effective no later
than 180 days after the Closing Date, or if such efforts do not succeed, as soon
as practicable thereafter (the "REQUIRED EFFECTIVE DATE"). The Company's
commercially reasonable efforts will include, but not be limited to, promptly
responding to all comments received from the staff of the SEC. If the Company
receives notification from the SEC that the Registration Statement will receive
no action or review from the SEC, then the Company will use its best efforts to
cause the Registration Statement to be effective within five (5) business days
after such SEC notification. Once the Registration Statement is declared
effective by the SEC, the Company will use its commercially reasonable efforts
to cause the Registration Statement to remain effective throughout the
Registration Period, subject to the rights of the Company under Section 1.14
hereof.
1.3 Limitations on Mandatory Registration. The Company shall not be
required to effect a registration pursuant to Sections 1.1 or 1.2 hereof:
(a) to the extent excepted or not required by Section 1.6(c)
hereof; or
(b) after the Company has effected a registration of Registrable
Securities pursuant to Sections 1.1 and 1.2, and such registration has been
declared or ordered effective; or
(c) if the Company shall furnish to holders within twenty (20)
days prior to the Required Effective Date, a certificate signed by the Company's
Chief Executive Officer or Chairman of the Board stating that in the good faith
judgment of the board of directors of the Company, it would be detrimental to
the Company and its stockholders for such registration to be effected at such
time, in which event the Company shall have the right to defer such filing for a
period of not more than 90 days after the Required Effective Date, provided that
such right to delay a request shall be exercised by the Company not more than
once in any twelve (12) month period, and provided further that the Company
shall not register any other of its shares of Common Stock during such 90 day
period.
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1.4 Company Voluntary Registration/Piggyback Rights. If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders other than the
Holders) any of its capital stock under the Act in connection with the public
offering of such securities (other than a registration relating solely to the
sale of securities to participants in a Company stock or option or employee
benefit plan, a registration relating to a corporate reorganization (including
securities issued by the Company in an acquisition transaction) or a transaction
under Rule 145 of the Act, a registration on any form (including Form S-4 and
Form S-8) that does not include substantially the same information as would be
required to be included in a Registration Statement covering the sale of the
Registrable Securities, or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered, ), then the Company shall, at such time, promptly give
each Holder written notice of such registration. Upon the written request of
each Holder given to the Company within fifteen (15) days after receipt from the
Company of notice of such pending registration, the Company shall, subject to
the provisions of Sections 1.3(c) and 1.14, use its best efforts to cause a
Registration Statement to become effective, which includes all of the
Registrable Securities that each such Holder has requested to be registered. If
the registration for which the Company gives notice is a public offering
involving an underwriting, the Company will so advise the Holders as part of the
above-described written notice. In that event, if the managing underwriter(s) of
the public offering impose a limitation on the number of shares of Common Stock
that may be included in the Registration Statement because, in such
underwriter(s)' judgment, such limitation would be necessary to effect an
orderly public distribution, then the Company will be obligated to include only
such limited portion, if any, of the Registrable Securities with respect to
which such Holders have requested inclusion hereunder. Any exclusion of
Registrable Securities will be made pro rata among all holders of the Company's
securities seeking to include shares of Common Stock in proportion to the number
of shares of Common Stock sought to be included by those holders. However, the
Company will not exclude any Registrable Securities unless the Company has first
excluded all outstanding securities the holders of which are not entitled by
right to inclusion of securities in such Registration Statement or are not
entitled pro rata inclusion with the Registrable Securities. No Holder may
participate in any distribution of Common Stock under this Section 1.4 unless
such Holder (i) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements or other plan of distribution approved
by the Company in its sole discretion, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements or other plan of distribution, and (iii) agrees to pay its pro rata
share of all underwriting discounts and commissions and other fees and expenses
of investment bankers and any manager or managers of such underwriting, and
legal expenses of the underwriter, applicable with respect to its Registrable
Securities, in each case to the extent not payable by the Company under the
terms of this Agreement.
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1.5 Mandatory Form S-3 Registration Right Preserved. No right to
registration of Registrable Securities under Section 1.4 limits in any manner
the registration required under Section 1.1 above. The obligations of the
Company under Section 1.4 expire upon the earlier of (i) the effectiveness of
the Registration Statement filed pursuant to Section 1.1 above, (ii) after the
Company has afforded the opportunity for the Holders to exercise registration
rights under Section 1.4 for one registration (provided however that any Holder
that has had any Registrable Securities excluded from any Registration Statement
in accordance with Section 1.4 may include in any additional Registration
Statement filed by the Company the Registrable Securities so excluded), or (ii)
upon the end of the Registration Period.
1.6 Obligations of the Company.
Whenever required under this Section 1 to effect the registration
of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible in connection therewith:
(a) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement;
(b) furnish to the Holders (i) a draft copy of the Registration
Statement, and (ii) such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
(c) use best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of such jurisdictions in the United States as shall be reasonably requested
by the Holders; provided however that notwithstanding any contrary provision
hereof, the Company is not required, in connection with such obligations, to (i)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify, (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause material expense or
burden to the Company, or (v) make any change in its certificate of
incorporation or bylaws, which in each case the board of directors of the
Company determines to be contrary to the best interests of the Company and its
stockholders;
(d) in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering, subject to the
other provisions hereof;
(e) notify each Holder of Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Act, of (i) the issuance of any stop order by
the SEC in respect of such
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Registration Statement, or (ii) to the extent of the actual knowledge of the
Company, the happening of any event as a result of which the prospectus included
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(f) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed; and
(g) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.7 Information from Holder.
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any Holder that such Holder shall furnish to the
Company such information regarding such Holder, the Registrable Securities held
by such Holder, and the intended method of disposition of such securities as
shall be reasonably required to effect the registration of the Registrable
Securities of such Holder.
1.8 Expenses of Registration.
All expenses incurred in connection with a registration hereunder
(other than underwriting discounts and commissions and the fees and
disbursements of legal counsel and advisors for the Holders), including (without
limitation) all registration, filing and qualification fees (including any Blue
Sky fees), printers' and accounting fees, fees and disbursements of counsel for
the Company, shall be borne by the Company, provided however that the Company
will pay up to a total of $15,000 in legal fees for a single legal counsel for
the Holders in connection with the mandatory registration provided by Section
1.1 hereof. Notwithstanding the foregoing, the Company shall not be required to
pay for any expenses of any registration proceeding begun pursuant to Section
1.4 if the registration request is subsequently withdrawn at the request of the
Holders (in which case all participating Holders shall bear such expenses pro
rata based upon the number of Registrable Securities that were to be requested
in the withdrawn registration), provided however that if such withdrawal is
based on a material adverse change in the condition, business or prospects of
the Company from that known to the Holders at the time of their request and such
Holders have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 1.4.
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1.9 Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.10 Indemnification.
In the event any Registrable Securities are included in a
Registration Statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each selling Holder, the partners or officers, directors and
stockholders of each Holder, legal counsel, investment advisors and accountants
for each Holder, any underwriter (as defined in the Act) for such Holder and
each person, if any, who controls such Holder or underwriter, within the meaning
of the Act or the 1934 Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Act, the 1934 Act
or any state securities laws, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the 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 (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities laws or any rule or
regulation promulgated under the Act, the 1934 Act or any state securities laws;
and the Company will reimburse each such Holder, partner, officer, director,
stockholder, counsel, accountant, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person;
provided further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder or
underwriter, or any person controlling such Holder or underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the
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shares to such person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) To the extent permitted by law, each selling Holder, on a
several and not joint basis, will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the Registration
Statement, each person, if any, who controls the Company within the meaning of
the Act, legal counsel and accountants for the Company, any underwriter, any
other Holder selling securities in such Registration Statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or any state securities
laws, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will
reimburse any person intended to be indemnified pursuant to this subsection
1.10(b) for any legal or other expenses reasonably incurred by such person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder (which consent shall not be unreasonably
withheld), provided that in no event shall any indemnity under this subsection
1.10(b) exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of actual knowledge of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
deliver to the indemnifying party a written notice of the commencement thereof.
The indemnifying party shall promptly assume the defense of the indemnified
party with counsel reasonably satisfactory to the indemnified party, and the
fees and expenses of such counsel shall be at the sole cost and expense of the
indemnifying party. The indemnified party will cooperate with the indemnifying
party in the defense of any action, proceeding, or investigation for which the
indemnified party assumes the defense. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel in any such
action, proceeding, or investigation and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the indemnifying party has agreed to pay such fees
and expenses, (ii) the indemnifying party shall have failed promptly to assume
the defense of such action, proceeding, or investigation and employ counsel
reasonably satisfactory to the indemnified party, or (iii) in the reasonable
judgment of the indemnified party there may be one or more defenses available to
the indemnified party which are not available to the indemnifying party with
respect to such action, claim, or proceeding due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such
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proceeding, in which case the indemnifying party shall not have the right to
assume the defense of such action, proceeding, or investigation on behalf of the
indemnified party. The indemnifying party shall not be liable for the settlement
by the indemnified party of any action, proceeding, or investigation effected
without its consent, which consent shall not be unreasonably withheld. The
indemnifying party shall not enter into any settlement in any action, suit, or
proceeding to which the indemnified party is a party, unless such settlement
includes a general release of the indemnified party with no payment by the
indemnified party of consideration. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10 to the extent of such prejudice, but the omission to so deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of and the
relative benefits received by the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage or expense, as well as any
other relevant equitable considerations, provided that no person guilty of fraud
shall be entitled to contribution. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The relative benefits received by the indemnifying party
and the indemnified party shall be determined by reference to the net proceeds
and underwriting discounts and commissions from the offering received by each
such party. In no event shall any contribution under this subsection 1.10(d)
exceed the net proceeds from the offering received by such Holder, less any
amounts paid under subsection 1.10(b).
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
Registration Statement under this Section 1, and otherwise.
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1.11 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to exercise its best efforts at all times to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144; or
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Act and the 1934 Act, or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC that permits the selling of any such securities without registration
or pursuant to such form.
1.12 Assignment of Registration Rights.
The rights to cause the Company to register Registrable
Securities pursuant to this Section 1 may be assigned (but only with all related
rights and obligations) by a Holder to a transferee or assignee of such
securities that (i) is a subsidiary, affiliate, parent, partner, limited
partner, retired partner or stockholder of a Holder, (ii) is a Holder's
immediate family member (spouse or child) or trust for the benefit of an
individual Holder, or (iii) after such assignment or transfer, holds at least
20,000 shares of the Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations),
provided that: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned, and provided further that the Company shall have no obligation
to any transferee prior to receiving such notification of transfer; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement and the Purchase Agreement of Holder, including
without limitation the provisions of Section 1.13 below; and (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act and the Purchase Agreement of Holder.
1.13 "Market Stand-Off" Agreements. Notwithstanding any other provision
of this Agreement:
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(a) Each Holder agrees that Holder will not sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise transfer or
dispose of any Registrable Securities for a period of 180 days from the Closing
Date, provided however that a Holder may distribute Registrable Securities to
the constituent partners of such Holder on a pro rata basis during such period
if: (i) the Company is, within a reasonable time after such distribution,
furnished with written notice of the name and address of such distributee and
the securities with respect to which such registration rights are being
distributed, and provided further that the Company shall have no obligation to
any distributee prior to receiving such notification; (ii) such distributee
agrees in writing to be bound by and subject to the terms and conditions and
covenants of this Agreement and the Purchase Agreement of such Holder, including
without limitation the provisions of Section 1.14 below; and (iii) such
distribution shall be effective only if immediately following such event the
further disposition of such securities by the distributee is restricted under
the Act and the Purchase Agreement of such Holder; and provided further that the
foregoing shall not limit or affect any of the representations or warranties of
the Holder under the Purchase Agreement of such Holder; and
(b) Each Holder further agrees that, upon request of the
Company's or the underwriters managing an underwritten offering of any of the
Company's securities, Holder will not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time not to exceed 180 days
following the effective date of such Registration Statement as may be requested
by the underwriters, provided that all officers and directors and greater than
five (5%) stockholders of the Company enter into similar agreements.
1.14 Suspension of Registration.
(a) The Company will notify each Holder who holds Registrable
Securities being sold pursuant to a Registration Statement of the happening of
any event of which the Company has knowledge as a result of which any prospectus
included in the Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company will make
such notification as promptly as practicable after the Company becomes aware of
the event, will promptly (but in no event more than fifteen (15) business days
thereafter) prepare a supplement or amendment to the Registration Statement to
correct such untrue statement or omission, and will deliver a number of copies
of such supplement or amendment to each Holder as such Holder may reasonably
request.
(b) Notwithstanding any provision to the contrary contained in
this Agreement, if in the good faith judgment of the Company resales of
Registrable Securities made pursuant to the Registration Statement might require
disclosure of material information that (i) might interfere with or affect any
financing, acquisition, or other significant transaction
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being contemplated by the Company, whether or not a final determination has been
made to undertake such transaction, or (ii) the Company has a bona fide business
purpose for preserving as confidential, and, with respect to each of the
foregoing that the Company is not otherwise required by applicable securities
laws or regulations to disclose, the Company will have the right to delay the
effectiveness of the Registration Statement or suspend the use of the
Registration Statement for a period of not more than 30 consecutive days and for
no more than 90 days in the aggregate during any twelve (12) month period;
provided however such 30 day period may upon notice to the Holders be extended
for up to an additional 30 days if such additional time is reasonably necessary
to complete financial statements or reports or other disclosure materials
reasonably necessary to be disclosed in the Registration Statement.
(c) Subject to the Company's rights under this Section 1.14, the
Company will use its commercially reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement
and, if such an order is issued, will use its commercially reasonable efforts to
obtain the withdrawal of such order at the earliest possible time and to notify
each Holder that holds Registrable Securities being sold of the issuance of such
order and the resolution thereof.
If the use of the Registration Statement is suspended by the Company, the
Company will promptly give notice of the suspension to all Holders whose
securities are covered by the Registration Statement, and will promptly notify
each such Holder as soon as the use of the Registration Statement may be
resumed.
2. MISCELLANEOUS
2.1 Governing Law. This Agreement shall be governed by and
construed 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, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Francisco County or the Federal Court for the
Northern District of California, and such courts shall have exclusive
jurisdiction over disputes under this Agreement. Each of the parties expressly
consents to jurisdiction and venue in the state and federal courts located in
the State of California, San Francisco County, for all purposes of this
Agreement or any dispute or controversy hereunder.
2.2 Successors and Assigns. Subject to Section 1.12 hereof, the
Holder shall not have any right to assign or transfer this Agreement or any of
its rights or obligations hereunder to any third person or entity without the
prior written consent of the Company, which may be withheld in its sole
discretion. Except as limited by the foregoing, the provisions hereof shall
inure to the benefit of and be binding upon the respective officers, directors,
stockholders, affiliates, partners, members, agents, representatives,
successors, assigns, heirs, devisees, spouses, executors and administrators of
each of the parties hereto. Without limiting the generality of the foregoing,
and notwithstanding anything in Section 1.3(b) to the contrary, each successor
to the Company shall be bound hereunder to register any
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Registrable Securities issued by such successors upon the conversion or exchange
of other Registrable Securities in connection with a business combination or
reorganization in which such successor is involved, even if the predecessor
Registrable Securities were registered pursuant to Section 1.1. and 1.2 and the
applicable registration statement has been declared or ordered effective.
2.3 Entire Agreement. This Agreement and the Purchase Agreement
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof; and any prior or contemporaneous
agreements, promises, understandings, covenants, conditions, representations or
warranties of any kind or nature with regard to said subject matter not
expressly set forth herein, whether written or oral or express or implied, shall
be superseded and of no force or effect. Any modification or amendment or waiver
of this Agreement must be in writing and signed by both parties to be valid.
2.4 Waiver; Remedies. Any failure to enforce or delay in
enforcing any of rights or obligations for the benefit of a party shall not be
treated as a waiver thereof. Any waiver of any breach of this Agreement shall
not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a party herein shall be cumulative and in addition to all other
rights and remedies of the party hereunder or under applicable law.
2.5 Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder ("Notices") shall be
in writing and shall be delivered prepaid (a) by personal delivery, (b) by a
nationally recognized overnight courier service, (c) by United States first
class registered or certified mail return receipt requested, or (d) by
telefacsimile, using equipment that provides written confirmation of receipt,
addressed to the other party at the address or facsimile number for such party
provided herein; and the date of notice shall be the earlier of (i) actual
receipt of notice by any permitted means, or (ii) three (3) business days
following dispatch by overnight delivery service or the United States Mail;
provided however any notice delivered by telefacsimile shall be effective only
if the facsimile is legible and if a confirming copy is sent by any other
permitted means hereunder within ten (10) days after transmission. All Notices
shall be addressed: (x) if to the Holder, at the Holder's address or
telefacsimile number set forth on the signature page hereof, or at such other
address or number as the Holder shall have furnished to the Company in writing
for such purpose, or (y) if to the Company, at its address or telefacsimile
number set forth on the signature page hereof, to the attention of the President
of the Company, or at such other address or number as the Company shall have
furnished in writing to the Holder for such purpose, with a copy to: Xxxxxxxx &
Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxxx, Esq.
2.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
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2.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
2.8 Interpretation. The titles and section headings set forth in
this Agreement are for convenience only. When the context requires, the plural
shall include the singular and the singular the plural, and any gender shall
include all other genders. No provision of this Agreement shall be interpreted
or construed against any party because such party or its counsel was the drafter
thereof. As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation. Except as
otherwise indicated, all references in this Agreement to "Sections" are intended
to refer to Sections of this Agreement.
2.9 Attorneys' Fees. In the event suit is brought to enforce or
interpret any part of this Agreement or any of the rights or obligations of any
party hereunder, the prevailing party shall be entitled to recover as an element
of such party's costs of suit, and not as damages, reasonable attorneys' fees
and expenses, court costs and expert witness fees and costs.
2.10 Expenses. Each of the parties shall bear all of its own
costs and expenses incurred in connection with the negotiation of this
Agreement, including legal and accounting fees incurred in connection therewith.
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IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Registration Rights Agreement as of the date first above written.
RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ Xxxxxxx Xxxxxxxx Date: December 8, 2000
--------------------------------
Xxxxxxx Xxxxxxxx, President
00000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: President
Fax: (000) 000-0000
HOLDER:
ASTORIA CAPITAL PARTNERS, L.P.
By: Astoria Capital Management, Inc.,
Its General Partner
By: /s/ Xxxxxxx X. Xxx Date: December 5, 2000
--------------------------------
Xxxxxxx Xxx, President
0000 00xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx Xxxxxx 00000
Fax: (000) 000-0000
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HOLDER:
By: /s/ Xxxxxx X. Shelini Date: December 11, 2000
-------------------------------------
for Solomon Xxxxx Xxxxxx as Custodian
Name, Address and Fax Number:
Xxxxxxxx X. Xxxxx, Xxxxx XX
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
(000) 000-0000
HOLDER:
By: /s/ Xxxxxx X. Van Roijen Date: December 6, 2000
-------------------------------------
Name, Address and Fax Number:
Xxxxxx X. Van Roijen
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
(000) 000-0000
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