EX 4.2
QRS CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made as of January
, 2000, by and among QRS Corporation, a Delaware corporation (the
"ACQUIROR"), and the individuals listed on Exhibit A hereto, each of whom is
herein referred to as a "HOLDER."
RECITALS
A. Image Info Inc., a New York corporation ("Target"), Acquiror and
WS Acquisition Corp., a New York corporation and a wholly-owned subsidiary of
Acquiror ("Merger Sub"), have entered into an Agreement and Plan of Merger,
dated as of January 16, 2000 (the "Merger Agreement "), pursuant to which
Target will be merged with and into Merger Sub (the "Merger").
B. Upon the consummation of the Merger and in connection therewith,
the shareholders of Target will become the owner of shares of common stock,
$0.001 par value per share, of Acquiror (the "Acquiror Common Stock").
C. In order to induce Target to enter into the Merger Agreement,
certain holders of Target have agreed to vote to approve of the Merger
Agreement and the transaction contemplated thereby and Acquiror has agreed to
provide certain registration rights to the Holders.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements, provisions and covenants set forth in the Merger Agreement and
in this Agreement, it is hereby agreed as follows:
1. REGISTRATION RIGHTS. Acquiror and the Investors covenant and
agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term the "ACT" means the Securities Act of 1933,
as amended.
(b) The term "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended.
(c) The term "PUBLIC OFFERING" means a firm commitment
underwritten public offering of Acquiror Common Stock pursuant to a
registration statement under the Act.
(d) The terms "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.
(e) The term "SEC" means the Securities and Exchange
Commission.
(f) The term "SHAREHOLDERS' AGENT" means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
(g) Terms not otherwise defined herein shall have the
meaning set forth in the Merger Agreement.
1.2 INVESTORS' REQUEST FOR REGISTRATION.
(a) If Acquiror shall receive from the Holders of not less
than a majority of the shares of Acquiror Common Stock received by all of the
Holders in connection with the Merger a written request that Acquiror effect
a shelf registration on the appropriate form under the Act with respect to
the resale of shares of Acquiror Common Stock received by the Holders in
connection with the Merger, Acquiror will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) use its reasonable best efforts to register as
expeditiously as reasonably possible, but in any event the filing of a
registration statement for such request shall occur no later than ninety (90)
days after receipt of the request, the resale of up to an aggregate of
100,000 shares of Acquiror Common Stock received by the Holders in
connection with the Merger to the extent requested by such requesting Holders
and any other Holder(s) joining in such request as are specified in a written
request given within twenty (20) days after receipt of such written notice
from Acquiror.
Each Holder is only entitled to have registered his or her
pro rata portion of the 100,000 shares of Acquiror Common Stock, which amount
is set forth on Exhibit A hereto.
(b) Notwithstanding the foregoing, if Acquiror shall
furnish to the Shareholders' Agent a certificate signed by the Chief
Executive Officer of Acquiror stating that, in the good faith judgment of the
Board of Directors of Acquiror, it would be seriously detrimental to Acquiror
and its shareholders for such registration statement to be filed in the near
future, Acquiror shall have the right to defer such filing for a period of
not more than one hundred twenty (120) days after receipt of the request;
PROVIDED, HOWEVER, that Acquiror may not utilize this right more than once in
any twelve-month period.
(c) Acquiror shall not be obligated to effect, or to take
any action to effect, a registration pursuant to this Section 1.2:
(i) if Acquiror delivers notice to the Shareholders'
Agent promptly after their registration request of its intent to file a
registration statement for a Public Offering within ninety (90) days of such
notice, provided that Acquiror is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
or
2.
(ii) during the one hundred eighty (180) day period
following the effective date of the registration statement relating to
Acquiror's Public Offering.
(d) Notwithstanding anything herein to the contrary,
Acquiror shall be entitled, without prior notice to any person, to suspend a
registration hereunder (x) during customary "blackout" periods relating to
material non-public information regarding Acquiror that cause the prospectus
contained in the relevant registration statement to not be complete or
correct in any material respect and (y) with respect to then current
employees of Acquiror, during any applicable Acquiror trading windows.
(e) Notwithstanding anything herein to the contrary,
Acquiror shall not in any event be required to include in a registration
hereunder any shares which can then be sold (and are not subject to the
volume limits) pursuant to Rule 144 under the Act without registration under
the Act.
1.3 OBLIGATIONS OF ACQUIROR. Whenever required under this
Agreement to effect the registration of any Acquiror Common Stock, Acquiror
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Acquiror Common Stock and use its best efforts to cause
such registration statement to become effective and keep such registration
statement effective until the earlier of the date six (6) months after the
effective date or until the sale of all Acquiror Common Stock covered
thereby, keeping the Holders advised as to the initiation, progress and
completion of the registration; PROVIDED, HOWEVER, that such six (6) month
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration as a
result of a suspension of the registration pursuant to Section 1.2(d).
(b) 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.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus and all amendments and
supplements thereto, in conformity with the requirements of the Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of Acquiror Common Stock owned by them and registered pursuant to
this Agreement.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as shall be reasonably requested by
the Holders, PROVIDED that Acquiror shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction.
(e) Notify each Holder of Acquiror Common Stock covered by
such registration statement at any time when a prospectus relating thereto is
required to be
3.
delivered under the Act of 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.
1.4 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of Acquiror to take any action pursuant to this Agreement
with respect to registration of the Acquiror Common Stock of any selling
Holder that such Holder shall furnish to Acquiror such information regarding
itself, the Acquiror Common Stock held by it, and the intended method of
disposition of such securities as shall be required to effect the
registration of such Holder's Acquiror Common Stock.
1.5 EXPENSES OF DEMAND REGISTRATION. Other than commissions
applicable to the Acquiror Common Stock covered by a registration, all
expenses incurred in connection with registrations, filings or qualifications
pursuant to Section 1.2, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for Acquiror shall be equally borne by Acquiror and
the Holders. The Holders shall be solely responsible for commissions
applicable to the Acquiror Common Stock covered by a registration statement
and any fees, disbursements and expenses of any counsel to the Holders.
1.6 INDEMNIFICATION. In the event any Acquiror Common Stock
are included in a registration statement under this Agreement:
(a) To the extent permitted by law, Acquiror will
indemnify and hold harmless 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 Exchange Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act, the Exchange Act or other federal or state law,
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 Acquiror of
the Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Act, the Exchange Act or any state securities law; and
Acquiror will pay to each such Holder, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that he indemnity agreement
contained in this Section 1.6(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 Acquiror (which consent shall
not be unreasonably withheld), nor shall Acquiror 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 which occurs (x) in reliance upon
and in conformity with written information furnished expressly for use in
connection with such
4.
registration by any such Holder, underwriter or controlling person,
(y) results from such Holder's failure to deliver a copy of the prospectus or
any supplements thereto after Acquiror has furnished such Holder with a
sufficient number of copies of same, or (z) results from such Holder's
delivery of prospectuses after Acquiror has notified such Holder in writing
to discontinue delivery of prospectuses.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless Acquiror, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls Acquiror within the meaning of the Act, 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 Exchange Act or other federal
or state law, 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 pay, as incurred, any legal or other expenses reasonably incurred
by any person intended to be indemnified pursuant to this Section 1.6(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this Section 1.6(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 Section 1.6(b) exceed the net proceeds from the offering received
by such Holder, except in the case of willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.6 of notice 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 1.6,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.6, but the omission
so to 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 1.6.
5.
(d) If the indemnification provided for in this
Section 1.6 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 therein, 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 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, in no
event shall any contribution by a Holder under this Section 1.6(d) exceed the
net proceeds from the offering received by such Holder, except in the case of
willful misconduct by such Holder. 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.
(e) The obligations of Acquiror and the Holders under this
Section 1.6 shall survive the completion of any offering of Acquiror Common
Stock in a registration statement under this Agreement, and otherwise.
2. COVENANTS OF THE ACQUIROR.
The Acquiror agrees to:
(a) Notify the Holders of Acquiror Common Stock included in a
registration statement pursuant to this Agreement (i) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement and (ii) upon learning of the initiation of any
proceedings for the purpose of suspending such effectiveness, the existence
of such proceedings. Acquiror will use its commercially reasonable efforts
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible time.
(b) Take all commercially reasonable actions necessary to expedite
and facilitate disposition of the registrable securities by the Holders
thereof pursuant to a registration statement pursuant to this Agreement.
(c) Prior to the filing of a registration statement pursuant to
this Agreement or any amendment thereto (whether pre-effective or
post-effective), and prior to the filing of any prospectus or prospectus
supplement related thereto, Acquiror will provide each Holder with copies of
all pages thereto, if any, which reference such Holder.
(d) Take all actions commercially reasonably necessary to
facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legend) representing Acquiror Common Stock sold pursuant to a
registration statement pursuant to this Agreement and to enable such
certificates to be in such denominations and registered in such names as the
Holders may reasonably request.
6.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any Acquiror Common Stock). Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
3.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier
or sent by telegram or fax, or forty-eight (48) hours after being deposited
in the U.S. mail, as certified or registered mail, with postage prepaid, and
addressed to the party to be notified at such party's address as set forth
below or on EXHIBIT A hereto or as subsequently modified by written notice.
3.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Acquiror and the Holders who
hold a majority of the Acquiror Common Stock received in connection with the
Merger. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each Holder of any Acquiror Common Stock received in
connection with the Merger.
3.7 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (x) such provision shall be excluded from this Agreement,
(y) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (z) the balance of the Agreement shall be enforceable in
accordance with its terms.
[Signature Page Follows]
7.
The parties have executed this Registration Rights Agreement as of
the date first above written.
COMPANY:
QRS CORPORATION
By:___________________________________
HOLDER:
______________________________________
Name:_________________________________
EXHIBIT A
SCHEDULE OF FORMER TARGET EQUITY HOLDERS
NAME AND ADDRESS OF HOLDER NO. OF SHARES RECEIVED IN PRO RATA PORTION OF THE
CONNECTION WITH THE SHARES RECEIVED IN CONNECTION
MERGER WITH THE MERGER
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 161,771 36,690
▇▇ ▇▇▇▇▇ ▇▇. #▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 161,771 36,690
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 32,363 7,340
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 40,432 9,170
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 6,614 1,500
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ #▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 20,238 4,590
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ #▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III 17,725 4,020
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2