REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of this 13th day of
February, 2002, by and among COMC, Inc., a Delaware corporation (the "Company"),
__________________________, and each of the investors listed on Schedule A
attached (collectively, the "Investors").
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
1.1. COMMISSION means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act and the
Exchange Act.
1.2. COMMON STOCK means the Company's Common Stock, $.01 par value.
1.3. EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.4. PERSON means an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
1.5. REGISTRABLE SECURITIES means any shares of Common Stock owned as
of the date hereof or acquired hereafter by Investors or by their permitted
successors and assigns, including but not limited to shares of Common Stock
issued to Investors pursuant to the Stock Purchase Agreements, dated February
13, 2002 between the Company and each of Investors but excluding any such shares
of Common Stock that have been (a) sold by such parties other than to a
permitted transferee of Investors, as defined in Section 5 hereof, (b)
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering such shares of Common Stock or (c) publicly sold pursuant to
Rule 144 of the Securities Act.
1.6. SECURITIES ACT means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. REGISTRATION RIGHTS
SECTION 2.1. REQUESTED REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. If at any time after the date hereof, the
Company shall receive from the Investors, holding at least 20% of the
Registrable Securities, a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities, the
Company shall do the following:
(i) within ten (10) days of receipt of such request from such Investor(s),
give written notice of the proposed registration to any other Investors; and
(ii) as soon as practicable, but in any event no later than ninety (90)
days after receipt of such request from the Investor(s), file a registration
statement with the Commission, and use its best efforts to effect such
registration, including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws (except that the Company shall not be
required to qualify the offering under the blue sky laws of any jurisdiction in
which the Company would be required to execute a general consent to service of
process unless the Company is already subject to service in such jurisdiction),
and appropriate compliance with applicable regulations issued under the
Securities Act, as may be so requested and as would permit or facilitate the
sale and distribution of all Registrable Securities as are specified in such
request, together with all Registrable Securities of any other Investor joining
in such request as are specified in a written request by the other Investors
within twenty (20) days after receipt of such written notice from the Company.
(b) UNDERWRITING.
(i) If the registration of which the Investors give notice is for a
registered public offering involving an underwriting, the Investors shall so
advise the Company as a part of their request made pursuant to Section 2.1(a)
above. The Company shall include such information in the written notice of the
Company referred to in Section 2.1(a)(i) above, including the name of the
underwriter or representative thereof selected for such underwriting. In such
event, the right of any Investor to registration pursuant to this Section 2.1
shall be conditioned upon such Investor participating in such underwriting and
the inclusion of such Investor's Registrable Securities in such underwriting to
the extent provided herein. Any underwriter requested by the Investors shall be
subject to the Company's approval.
(ii) The Company shall (together with all Investors proposing to distribute
their Registrable Securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or representative
thereof selected for such underwriting. Notwithstanding any other provision of
this Section 2.1, if the underwriter or representative thereof advises the
Investors in writing that, in its opinion, marketing factors require a
limitation on the number of shares to be underwritten, the number of shares of
Registrable Securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: the securities of the
Company held by officers or directors (other than Registrable Securities) of the
Company and other stockholders, and the securities to be sold by the Company for
its own account shall be excluded from such registration to the extent so
required by such limitation, and if a limitation of the number of shares is
still required, the number of shares of Registrable Securities that may be
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included in the registration and underwriting shall be allocated among all
Investors in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities which they had requested to be included in such
registration at the time of filing the registration statement. No Registrable
Securities or any other securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If the Company or any holder of Registrable Securities, officer, director or
other stockholder who has requested inclusion in such registration as provided
above disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Company, the underwriter and the
other Investors. The securities so withdrawn shall also be withdrawn from
registration. Any Registrable Securities or other securities excluded shall also
be withdrawn from such registration.
SECTION 2.2. PIGGYBACK REGISTRATIONS. If at any time or times the
Company shall determine to register any of its Common Stock or securities
convertible into or exchangeable for Common Stock under the Securities Act,
whether in connection with a public offering of securities by the Company (a
"primary offering"), a public offering thereof by stockholders (a "secondary
offering"), or both (but not in connection with a registration effected solely
to implement an employee benefit plan or a transaction to which Rule 145 or any
other similar rule of the Commission under the Securities Act is applicable),
the Company will promptly give written notice thereof to the Investors, and will
use its best efforts to effect the registration under the Securities Act of all
Registrable Securities which Investors may request in a writing delivered to the
Company within fifteen (15) days after the notice given by the Company;
provided; however, that in the event that any registration pursuant to this
Section 2.1 shall be, in whole or in part, an underwritten public offering of
Common Stock, the number of shares of Registrable Securities to be included in
such an underwriting may be reduced (pro rata among Investors and any other
holder of Registrable Securities based upon the number of shares of Registrable
Securities owned by Investors and such holders) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold by the Company therein,
PROVIDED, HOWEVER, that, prior to any such reduction, the Company shall first
exclude from such registration, in the following order, all shares of Common
Stock sought to be included therein by (i) any holder thereof not having any
such contractual, incidental registration rights, and (ii) any holder thereof
having contractual, incidental registration rights subordinate or junior to the
rights of Investors.
SECTION 2.3. REGISTRATION EXPENSES. In the event of a registration
described in Section 2.1, all reasonable expenses of registration and offering
of Investors including, without limitation, printing expenses, fees and
disbursements of counsel, including counsel for Investors, and independent
public accountants, fees and expenses (including counsel fees incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc. and fees of transfer agents and
registrars), shall be borne by the Investors and each of the Investors shall
bear underwriting commissions and discounts attributable to his Registrable
Securities being registered.
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SECTION 2.4. FURTHER OBLIGATIONS OF THE COMPANY. Whenever, under the
preceding sections of this Agreement, the Company is required hereunder to
register Registrable Securities, it agrees that it shall also do the following:
(a) Use its best efforts to diligently prepare for filing with the
Commission a registration statement and such amendments and supplements to said
registration statement and the prospectus used in connection therewith as may be
necessary to keep said registration statement effective for a period of at least
270 days and to comply with the provisions of the Securities Act with respect to
the sale of securities covered by said registration statement for the period
necessary to complete the proposed public offering;
(b) Furnish to Investors such copies of each preliminary and final
prospectus and such other documents as such holder may reasonably request to
facilitate the public offering of his Registrable Securities;
(c) Enter into any underwriting agreement with provisions reasonably
required by the proposed underwriter for Investor, if any, and reasonably
acceptable to the Company; and
(d) Use its best efforts to register or qualify the Registrable
Securities covered by said registration statement under the securities or
"blue-sky" laws of such jurisdictions as Investor may reasonably request.
3. INDEMNIFICATION.
Incident to any registration referred to in this Agreement, and subject
to applicable law, the Company will indemnify each underwriter, each Investor,
and each person controlling any of them against all claims, losses, damages and
liabilities, including legal and other expenses reasonably incurred in
investigating or defending against the same, arising out of any untrue statement
of a material fact contained in any prospectus or other document (including any
related registration statement) or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of any violation by the Company of the Securities
Act, any state securities or "blue-sky" laws or any rule or regulation
thereunder in connection with such registration, PROVIDED HOWEVER, that the
Company will not be liable in any case to the extent that any such claim, loss,
damage or liability (i) may have been caused by an untrue statement or omission
which is based upon information furnished in writing to the Company by Investors
expressly for use therein, or (ii) may have been suffered or incurred by the
Company and resulted from an action, claim or suit by a Person who purchased
Registrable Securities or other securities of the Company from any of the
Investors in reliance upon any untrue statement or omission which was contained
or made in any preliminary prospectus furnished by Investor to such Person in
connection with such registration and which was corrected in a final prospectus
which such Investor possessed, but which such Investor failed to deliver or
provide a copy of such final prospectus to such Person at or prior to the
confirmation of the sale of any such Registrable Securities in any case where
such delivery is required by the Securities Act. In the event of any
registration of any of the Registrable Securities under the Securities Act
pursuant to this Agreement, each Investor will indemnify and hold harmless the
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Company, each of its directors and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act against any claim, losses,
damages and liabilities, including legal and other expenses reasonably incurred
in investigating or defending it against the same, (i) arising out of any untrue
statement of a material fact contained in any prospectus or other document
(including any related registration statement) or any omission to state therein
a material fact required to be stated therein or necessary to make the statement
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such Investor, specifically for use in connection with the preparation
of such registration statement, prospectus, amendment or supplement, or (ii)
which may have been suffered or incurred by the Company and which resulted from
an action, claim or suit by a Person who purchased Registrable Securities or
other securities of the Company from Investor in reliance upon any untrue
statement or omission which was contained or made in any preliminary prospectus
furnished by such Investor to such Person and which was corrected in a final
prospectus which Investor possessed, but which such Investor failed to deliver
or provide a copy of such final prospectus to such Person at or prior to the
confirmation of the sale of any such Registrable Securities in any case where
such delivery is required by the Securities Act; PROVIDED, HOWEVER, that the
obligations of each Investor hereunder shall be limited to an amount equal to
the proceeds to such Investor of Registrable Securities sold as contemplated
herein.
4. RULE 144 REQUIREMENTS.
If the Company remains subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act, the Company will use its best
efforts to file with the Commission such information as the Commission may
require under either of said sections; and in such event, the Company shall use
its best efforts to take all action as may be required as a condition to the
availability of Rule 144 of the Securities Act (or any successor exemptive rule
hereinafter in effect). The Company shall furnish to such Investor upon request,
a written statement executed by the Company as to the steps it has taken to
comply with the current public information requirements of Rule 144.
5. TRANSFER OF REGISTRATION RIGHTS.
The registration rights of Investors under this Agreement may be
transferred to any transferee of any Registrable Securities, who (i) is a holder
of Registrable Securities as of the date of this Agreement, (ii) is an affiliate
of an entity that holds Registrable Securities, as "affiliate" is defined in the
Investment Company Act of 1940, as of the date of this Agreement (including a
partner of such holder), or (iii) acquires at least 10,000 shares of Registrable
Securities (as adjusted for stock splits, stock dividends, reclassification,
recapitalizations or other similar events). Each such transferee shall be deemed
to be an "Investor" for purposes of this Agreement; PROVIDED, HOWEVER, that no
transfer of registration rights by Investor pursuant to this Section 5 shall
create any additional rights in the transferee beyond those rights granted to
Investors pursuant to this Agreement.
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6. MISCELLANEOUS
SECTION 6.1. DAMAGES. The Company recognizes and agrees that Investors
will not have an adequate remedy if the Company fails to comply with this
Agreement and that damages may not be readily ascertainable, and the Company
expressly agrees that, in the event of such failure, it shall not oppose an
application by any Investor requiring specific performance of any and all
provisions hereof or enjoining the Company from continuing to commit any such
breach of this Agreement.
SECTION 6.2. NO WAIVER, CUMULATIVE REMEDIES. No failure or delay on the
part of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 6.3. AMENDMENTS AND WAIVERS. Except as hereinafter provided,
amendments to this Agreement shall require and shall be effective upon receipt
of the written consent of both the Company and Investors. Except as hereinafter
provided, compliance with any covenant or provision set forth herein may be
waived upon written consent by the party or parties whose rights are being
waived. Any waiver or amendments may be given subject to satisfaction of
conditions stated therein and any waiver or amendments shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 6.4. NOTICES. As the terms "notice" or "notices" are used
herein as between the parties, such term shall mean a written document,
explaining the reason for the notice, and the same shall be mailed by United
States Postal Service Via Certified Mail, Return Receipt Requested, addressed as
follows:
If to the Company: ▇▇▇▇▇ ▇▇▇▇▇, President & CEO
COMC, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
McCutchen, Doyle, ▇▇▇▇▇ & Enersen, LLP
Three Embarcadero Center
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Investors: to the respective address set forth on Schedule I
attached hereto,
Such notice shall be deemed to have been given on the date placed in the U.S.
Mails, and sent by fax to counsel, whether actually received by the addressee or
not. The parties shall, as a matter of convenience and courtesy, send each party
receiving notice a copy of said notice by facsimile or other electronic means,
or by courier, Federal Express, or similar service, but such notifications shall
not be deemed lawful "notice" as required hereby. The parties may, from time to
time, amend the above addresses and names by written notice to the other party.
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SECTION 6.5. BINDING EFFECT, ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns, except that the Company shall not have the right
to delegate its obligations hereunder or to assign its rights hereunder or any
interest herein without the prior written consent of all of the Investors.
SECTION 6.6. PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings or
agreements concerning the subject matter hereof.
SECTION 6.7. SEVERABILITY. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained in this Agreement, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement, but instead this Agreement shall be reformed and construed as if
such invalid or illegal or unenforceable provision, or part of a provision, had
never been contained herein, and such provisions or part reformed so that it
would be valid, legal and enforceable to the maximum extent possible.
SECTION 6.8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of California.
SECTION 6.9. HEADINGS. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
SECTION 6.10. COUNTERPARTS. This Agreement maybe executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
SECTION 6.11. FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of any party hereto, the other parties shall execute
and deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
COMC, Inc.
By:
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
INVESTORS:
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