EXHIBIT 10.8
TECHNOLOGY HORIZONS CORP.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
REGISTRATION RIGHTS AGREEMENT
June 3, 1998
To: ▇▇▇▇▇ ▇▇▇▇
Reference is made to the Assignment Agreement between you and
Technology Horizons Corp. (the "Company") dated June 3, 1998 (the "Assignment
Agreement"). Pursuant to the Assignment Agreement, you (the "Holder"), have
received 936,727 shares of Common Stock of the Company ("Common Stock"), as
set forth in the Assignment Agreement. This letter sets forth the agreement
of the Company to register the shares of Common Stock (collectively, the
"Registrable Securities") under the Securities Act (as defined below) and
your agreement with respect to several matters as set forth below if you
register the Registrable Securities.
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"COMMISSION " means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act (as defined
below).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"REGISTRATION EXPENSES" means, for purposes of Section 5 below, all
expenses incurred by the Company in complying with this Agreement, including,
without limitation, all registration and filing fees, exchange listing fees,
printing expenses, fees and disbursements of counsel for the Company, state
securities or Blue Sky fees and expenses for the State of New York, and the
expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and
the fees and expenses of the Holder's own counsel.
"REGISTRABLE SECURITIES" means: (i) subject to the provisions of
this Agreement, 40% of the Shares of Common Stock issued to the Holder
pursuant to the Assignment Agreement; and (ii) any in respect of the
foregoing (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events).
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement covering only securities
proposed to be issued in exchange. for securities or assets of another
corporation).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may from time to time, be in effect.
2. SECURITIES NOT REGISTERED.
The Holder agrees that, unless the Registrable Securities are
registered, the Holder will not dispose of the Registrable Securities or any
interest therein, unless and until the Registrable Securities have been
validly registered under the Securities Act or file Company has determined
that tile intended disposition does not violate the Securities Act or the
rules and regulations of the Commission thereunder (the Company may
reasonably rely on an opinion of its counsel in making such determination).
3. REGISTRATION
3.1 (a) On one occasion, the Company shall, as soon as
practicable, (but in any event within six (6) months after the date hereof),
file a Registration Statement pursuant to the Securities Act, in order that
the Registrable Securities may be sold under the Securities Act as promptly
as practicable thereafter, and the Company will use its commercially
reasonable best efforts to cause such registration to become effective,
provided that the Holder shall furnish the Company with appropriate
information (relating to the intentions of the Holder), in connection
therewith as the Company shall reasonably request in writing. The Company
shall use its best efforts to keep the registration statement current for a
period of six months or until all Registrable Securities registered
thereunder have been sold, which ever is sooner.
(b) The Company shall be entitled once to postpone for a
reasonable period of time (but not to exceed 90 days) the filing of any
registration statement required to be prepared and filed by it pursuant to
this Section 3.1 if nationally recognized investment bank shall advise the
Company in writing that, in its opinion, the Company is unable to effect an
underwritten offering due to then currently prevailing market conditions or
due to circumstances affecting the financial condition, business or
operations of the Company, Promptly (but in no event more than 30 days) after
receipt of such, opinion, the Company shall give the Holder written notice of
its determination to postpone the filing of any registration statement. and
an approximation of the anticipated delay,
(c) The rights of Holder to the registration pursuant to
Section 3. 1 (a) are subject to the following limitations: (i) the Company
shall not be obligated to effect a registration within six months after the
effective date of any other registration of securities (other than pursuant to
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registration on Forms S-4 or S-8 or any successor or similar form which is
then in effect), and (ii) in no event shall the Company be required to effect
more than one registration pursuant to this Section 3.1
3.2 The Holder's rights under Section 3.1 shall be subject of
the limitation that, in the event that the Company files a Registration
Statement for an underwritten public offering the registration of the
Registrable Securities shall be upon the condition that:
(a) if requested by the managing underwriter as a condition
of the offering, they be sold through the underwriters on the same terms and
conditions as arc applicable to the Company or all other selling stockholders
of the Company; or
(b) if such condition is imposed by the managing
underwriter, and the Holder does not wish to sell the Registrable Securities
upon such terms and conditions, the Holder will agree not to transfer or
otherwise dispose of any Registrable Securities for a period of time from the
effective date of the Registration Statement (not to exceed one hundred
eighty (180) days) specified by the Managing underwriter.
3.3. If it registration of the Company's shares involves an
offering by or through underwriters, the Company, except as otherwise
provided herein, shall not be required to include Registrable Securities
therein if and to the extent the underwriter managing the offering reasonably
believes in good faith and advises the Company in writing that such inclusion
would materially and adversely affect such offering; provided that any such
reduction or elimination shall be PRO RATA to all other selling stockholders
participating in such offering, in proportion to the respective number of
shares they have requested to be registered.
3.4. In the event the Company receives private financing in an
amount exceeding $1,000,000 and as a condition of such financing officers,
directors and greater than 5% shareholders arc required to agree not to sell,
assign, or otherwise transfer any shares (a "lock-up Agreement"), the Holder
agrees to enter into a lock-tip agreement on the same terms as such other,
holders.
3.5. The registration rights granted hereunder shall expire on
earlier of one (1) year from the date the Company has a class of equity
securities registered under Section 12(b) or 12(g) of the Exchange Act or
June, 20, 2000.
3.6. Notwithstanding the provisions of Sections 3 and 4 hereof;
(a) the Company shall have the right to delay or suspend the preparation and
filing of a registration statement for up to 90 days if in the reasonable and
good faith judgment of a majority of the Directors on the Board of Directors
of the Company such preparation or filing would impede, delay or interfere in
any material fashion with any material financing or material business
transaction actively being pursued by the Company at time of receipt of the
request for such registration or with the ability of the Company to conduct
its affairs or would have a material adverse effect on the business,
properties or financial condition of the Company; PROVIDED, HOWEVER, that the
Company shall use its commercially reasonable best efforts to cause the
registration statement to become effective within 180 days, and shall only be
entitled to utilize this clause once in any 12 month period; and (b) if, the
Company is
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working on an underwritten, public offering of Common Stock (a "Company
Initiated Public Offering") and is advised by the managing underwriter(s) in
writing that such offering would in its or their opinion be adversely
affected by such filing, then the Company shall have the right, upon notice
to the Holder requesting registration within 14 days after receipt of such
request, to delay or suspend the filing of the registration statement
requested by such Holder; PROVIDED that the Company shall use its best
efforts to cause any such registration statement requested by the Holders to
become effective within 180 days (or, if required by the underwriters for the
Company Initiated Public Offering, within 270 days) after the date on which
all securities covered by the Company Public Offering have been sold, and
that the Company shall use its best efforts to include any Registrable
Securities that are the subject of a notice delivered by Holders under
Section 3 in the registration statement for such Company Initiated Public
Offering.
4. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of tho
Registrable Securities under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) as expeditiously as possible, prepare and file with the
Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
keep the Registration Statement effective for a period of not less than nine
months from the effective date;
(c) as expeditiously as possible, furnish to the Holder such
reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as the Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by The Holder; and
(d) as expeditiously as possible, use its best efforts to
register or qualify the Registrable Securities covered by the Registration
Statement under the securities or Blue Sky laws of New York, and do any and
all other acts and things that may be necessary or desirable to enable the
Holders to consummate the public sale or other disposition in such states of
the Registrable Securities owned by the Holder; PROVIDED, HOWEVER, that the
Company shall not be required in connection with this Section 4(d) to qualify
as a foreign corporation or execute a general consent to service of process
in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
the Holder and, after having done so, the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly
notify the Holder and, if requested, the Holder shall immediately cease
making offers of Registrable Securities and return all prospectuses to the
Company. The Company
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shall promptly provide the Holder with revised prospectuses and, following
receipt of the revised prospectuses, the Holder shall be free to resume
making offers of the Registrable Securities.
5. ALLOCATION OF EXPENSES.
The Company will pay all Registration Expenses of all Registration
Statements under this Agreement.
6. INDEMNIFICATION
In the event of any registration of any of the Registrable
Securities tinder the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless the seller of such Registrable Securities,
each underwriter of such Registrable Securities, and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, in so far as much
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement wider which such
Registrable Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or arc based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such
seller, underwriter and each such controlling person for any legal or any
other expenses reasonably incurred by such seller, underwriter or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission
made in such Registration Statement, preliminary prospectus or prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof.
In the event of any registration of any of the Registrable Securities
under the Securities Act pursuant to this Agreement, each seller of Registrable
Securities, severally and not jointly, will indemnify and hold harmless the
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 losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers. underwriters or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
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Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements 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 seller, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement, PROVIDED, HOWEVER, that the obligations of such seller hereunder
shall be limited to an amount equal to the proceeds to each seller of
Registrable Securities sold as contemplated herein.
Each party to Indemnification under this Section 6 (the "Indemnified
Party") shall give notice to the party required to provide indemnification
(the "Indemnifying Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and shall permit
the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement. The Indemnified Party may participate
in such defense at such party's expense; PROVIDED, HOWEVER, that the
Indemnifying Party shall pay such expense 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 the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, 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 of such
claim or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent
of the Indemnifying Party.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING
In the event that Registrable Securities are sold pursuant to a
registration statement in an underwritten offering pursuant to section 2 or
3, the Company agrees to enter into an underwriting agreement containing
customary representations and warranties with respect to the business and
operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including, without
limitation, customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
8. INFORMATION BY THE HOLDER.
The Holder shall furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
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9. SELECTION OF UNDERWRITER
In the case of any registration effected pursuant to this Agreement,
the Company shall have the exclusive right to designate the managing
underwriter in any underwritten offering.
10. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon, and inure to
the benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto.
11. FURTHER ASSURANCES.
From and after the date hereof, all persons subject to or bound by
this Agreement shall from time to time, at the request of any such other
person and without further consideration, do, execute and deliver, or cause
to be done, executed and delivered, all such further acts, things and
instruments as may reasonably be requested or required more effectively to
evidence and give effect to the provisions, intent and purposes of this
Agreement (including, without limitation, certificates to the effect that
this Agreement continues operative and as to any defaults hereunder or
modifications hereof).
12. NOTICES.
All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (1) delivered by hand, (2) sent by reputable
overnight courier by next day, priority, or (3) sent by registered or
certified mail, return receipt requested, postage prepaid.
If to the Holder: ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Company: Technology Horizons Corp,
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy in each
case to: ▇▇▇▇▇▇▇▇, Mencher, Klosowski, ▇▇▇▇▇▇▇ & Scope, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (1) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(2) if sent by overnight courier, on the next business day following the
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day such notice is delivered to the courier service, or (3) if sent by
registered or certified mail, on the fifth business day following the day
such mailing is made.
13. CERTAIN OTHER AGREEMENTS.
In the event Registrable Securities are included in a Registration
Statement, you agree;
(a) to offer the Registrable Securities only in the manner set
forth on the cover page of the Prospectus included in the Registration
Statement;
(b) not to effect any transaction for the purpose of
stabilizing the price of the Registrable Securities offered or any securities
into which the Registrable Securities are convertible;
(c) to supply to any broker to whom you offer registered
securities a copy of the Prospectus;
(d) to promptly report all sales made to the Company; and
(e) to comply with the provisions of Rule 10b-6 under the
Exchange Act,
14. APPLICABLE LAW.
This Agreement shall be governed and construed under the laws of the
State of Delaware, without regard to any choice or conflicts of law
principles thereof.
Please acknowledge your consent to terms of this Agreement by
signing and returning a copy of this Agreement to the Company.
TECHNOLOGY HORIZONS CORP.
By:
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Accepted and agreed this 3rd
day of June, 1998
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Holder/Purchaser
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