EXHIBIT 10.2
ASI SOLUTIONS INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of January 15, 1997, by and among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), residing at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), residing at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. ("▇▇▇▇▇"), residing at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and ASI Solutions Incorporated, a
Delaware corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"). All of the parties to this Agreement
are hereinafter collectively referred to sometimes as the "Parties". ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ and ▇▇▇▇▇ are hereinafter collectively referred to sometimes as the
"Stockholders" and individually as a "Stockholder."
WHEREAS, the Stockholders and the Company wish to provide for various
matters affecting the rights of the Stockholders as stockholders of the Company
and enter into this Agreement in order to effectuate such purpose;
WHEREAS, each Stockholder is the owner of common stock of the Company, par
value $.01 per share (the "Common Stock");
WHEREAS, ▇▇▇▇▇▇▇▇ owns 2,783,746 shares of Common Stock representing 60.2%
of the outstanding Common Stock; Salig owns 1,269,222 shares of Common Stock
representing 27.4% of the outstanding Common Stock; and ▇▇▇▇▇ owns 364,121
shares of the Common Stock representing 7.8% of the outstanding Common Stock;
and
WHEREAS, all shares of Common Stock of the Company now held or hereafter
acquired by the Stockholders shall be deemed to be shares of the Stockholders
(the "Stockholder Shares") and shall be subject to this Agreement;
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
and the terms and conditions set forth in this Agreement, the Parties hereto
agree as follows:
1. Representations and Warranties.
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Each of the Stockholders represents and warrants that:
(a) Ownership of Common Stock. He owns the number of shares of Common
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Stock ascribed to him in the preamble to this Agreement.
(b) Authorization. He has full right, power and authority to execute this
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Agreement and to perform fully the obligations hereunder; he has duly executed
and delivered this Agreement, and this Agreement constitutes his legal, valid
and binding obligation, enforceable against him in accordance with its terms.
(c) Conflicts. This Agreement does not and will not conflict with or
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result in the breach of any term or provision of, or constitute a default under
any agreement or instrument to which he is a party or by which he is bound, or
any law, rule, regulation, order, judgment or decree of any court or
governmental authority applicable to him.
(d) Consents. Except as expressly contemplated by this Agreement, no
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consent, approval, authorization, registration, declaration or filing with any
governmental authority is required to be obtained or made in connection with the
execution, delivery or performance of this Agreement.
2. Incidental Registration Rights.
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(a) If the Company at any time proposes to register any shares of Common
Stock under the Securities Act of 1933, as amended (the "Securities Act"), by
registration on Forms ▇-▇, ▇-▇ or S-3 or any successor or similar form(s),
whether or not for sale for its own
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account (other than registrations of securities in connection with an employee
benefit plan, Company stock option or dividend reinvestment plan or in
connection with the acquisition of assets or shares of or merger or
consolidation with another corporation), and the registration form to be used
may also be used for the registration of shares of Stockholder Shares (an
"Incidental Registration"), the Company shall each such time notify the
Stockholders at least 30 days prior to the filing of any registration statement
with respect thereto. Upon the receipt of a written request of any Stockholder
made within 10 days after such notice (which request shall specify the Common
Stock intended to be disposed of by each holder and the intended method of
disposition thereof), the Company will use its best efforts, subject to the
limitations set forth below, to include in such registration all such
Stockholder Shares with respect to which the Company has received a written
request for inclusion by any Stockholder, provided that the Company shall not be
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obligated to register in an Incidental Registration Stockholder Shares
constituting less than two and one-half percent (2 1/2 %) of the total number of
shares of Common Stock then outstanding, unless the Company shall be registering
all of the shares of Common Stock held by such Stockholder. Each request shall
also contain an undertaking from the Stockholders to provide all information and
material and to take all actions as may be required by the Company in order to
permit the Company to comply with all applicable federal and state securities
laws. For the purposes of this subsection (a), "best efforts" shall not require
the Company to reduce the amount or sale price of the securities it proposes to
register.
(b) Each selling Stockholder shall pay all sales commissions or other
similar selling charges with respect to Stockholder Shares sold by such
Stockholder pursuant to a registration. The Company shall pay all registration
and filing fees, fees and expenses for compliance with federal and state
securities laws, printing expenses, messenger and delivery expenses, fees and
disbursements of counsel and accountants for the Company and fees and expenses
of one counsel for all selling Stockholders in connection with an Incidental
Registration, to be selected by the selling Stockholders holding a majority of
the Stockholder Shares to be sold in such registration, unless the applicable
state securities laws require that stockholders whose securities are being
registered pay their pro rata share of such fees, expenses
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and disbursements, in which case each Stockholder participating in the
registration shall pay its pro rata share of all such fees, expenses and
disbursements based on his pro rata share of the total number of shares being
registered.
(c) If an Incidental Registration is an underwritten registration, only
shares of Common Stock which are to be distributed by the underwriters may be
included in the registration. If the managing underwriters advise the Company
in writing that in their opinion the number of shares of Common Stock requested
to be included in such registration exceeds the number which can be sold in such
offering or will have a material adverse effect on the price of the shares of
Common Stock to be sold, the Company will include in such registration (i)
first, the shares of Common Stock which the Company proposes to register and
shares of Common Stock of any other holders of shares of Common Stock or
options, warrants or other securities convertible into Common Stock who are
entitled to incidental registration rights prior to those which the Stockholders
propose to register, allocated among the Company and such holders in accordance
with any agreement among the Company and such holders; and (ii) second,
Stockholder Shares which the Stockholders propose to register and shares of
Common Stock any other holders of shares of Common Stock or options, warrants or
other securities convertible into Common Stock who are entitled to incidental
registration rights on a par with that which the Stockholders propose to
register, in proportion to the number of shares of Common Stock such
Stockholders and other holders propose to include in the Incidental
Registration. The managing underwriters for a registration pursuant to this
Section shall be chosen by the Company.
(d) Notwithstanding the foregoing, if at any time after giving written
notice to the Stockholders of its intention to register any shares of Common
Stock pursuant to subsection (a) of this Section 2 and prior to the effective
date of the Registration Statement filed in connection with such registration,
the Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to each
Stockholder and thereupon shall be relieved of its obligation to register any
Stockholder
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Shares in connection with such registration (but not from its obligation to pay
certain expenses in connection therewith as provided in subsection (b) above).
(e) The Company may suspend its obligation to register Stockholder Shares
pursuant to this Section 2 if, in the opinion of counsel to the Company, the
Stockholder Shares proposed to be sold pursuant to this Section 2 can be sold in
the same volume and manner as they are proposed to be sold by such Stockholder
in a transaction exempt from registration pursuant to the Securities Act and
similar state securities laws.
(f) Each Stockholder agrees not to sell or offer for sale any of his
Stockholder Shares within 7 days prior to or 90 days after the effective date of
any registration (except as part of such registration).
3. Registration Upon Request.
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(a) Request for Registration. At any time after the Company has completed
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an IPO pursuant to a registration and shall no longer be restricted from
commencing a second registration pursuant to applicable law and upon the written
request of one or more Stockholders holding in the aggregate at least seven
percent ( 7%) of the shares of outstanding Common Stock (each an "Initiating
Holder") requesting that the Company effect pursuant to this Section 3 the
registration of any of such Initiating Holders' Stockholder Shares (a "Demand
Registration") under the Securities Act (which request shall specify the
Stockholder Shares requested to be registered, the proposed amounts thereof, and
the intended method of disposition by such Initiating Holders), the Company
shall promptly give written notice of such requested registration to all
Stockholders, and thereupon the Company will, as expeditiously as reasonably
possible, use its best efforts to effect the registration of: (i) the
Stockholder Shares which the Company has been so requested to register by the
Initiating Holder, for disposition in accordance with the intended method of
disposition stated in such request, and (ii) all other Stockholder Shares owned
by Stockholders, the holders of which shall have made a written request to the
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Company for registration thereof (which request shall specify the Stockholder
Shares requested to be registered, the proposed amounts thereof and the intended
method of disposition by such Stockholder) within 30 days after the receipt of
such written notice from the Company, all to the extent requisite to permit the
disposition by the holders of the securities constituting Stockholder Shares so
to be registered, provided that the Company shall not be required to effect any
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registration pursuant to this Section 3 if it is a registration with respect to
which the Company is not required to pay expenses pursuant to Section 3(b)(i)
unless the Company shall have received assurances satisfactory to it that the
Initiating Holder will bear the expenses of registration.
(b) Limitations on Registrations. The registration rights granted to the
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Initiating Holders pursuant to this Section 3 are subject to the following
limitations:
(i) Each selling Stockholder shall pay all sales commissions or
other similar selling charges with respect to his Stockholder Shares sold
pursuant to a registration. In connection with one Demand Registration
pursuant to this Section 3, at the request of the Initiating Holder, the
Company shall pay all registration and filing fees, fees and expenses of
compliance with federal and state securities laws, printing expenses,
messenger and delivery expenses, fees and disbursements of counsel and
accountants for the Company and fees and expenses of one counsel, selected
by the selling Stockholders holding a majority of the Stockholder Shares to
be sold in such registration, for all selling Stockholders in connection
with a Demand Registration, unless the applicable state securities laws
require that stockholders whose securities are being registered pay their
pro rata share of such fees, expenses and disbursements, in which case each
Stockholder participating in the registration shall pay its pro rata share
of all such fees, expenses and disbursements based on its pro rata share of
the total number
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of shares being registered. In all other instances, the selling
Stockholders shall pay all expenses of a Demand Registration;
(ii) Initiating Holders holding a majority of the shares of
Common Stock held by all Initiating Holders shall determine (A) whether
such Demand Registration shall be the one Demand Registration in which the
Company pays expenses pursuant to clause (i) of this section, (B) the
method of distribution of the securities to be registered and (C) if an
underwritten offering, shall select the managing underwriter of such
offering;
(iii) The Company shall be entitled to postpone for a
reasonable time not exceeding 120 days the filing of any registration
statement under this Section 3 if, at the time it receives a request for a
Demand Registration pursuant thereto, the Board of Directors of the Company
shall determine in good faith that such offering will interfere with a
pending financing, merger, sale of assets, recapitalization or other
corporate action which the Company is actively pursuing and is material to
the business of the Company; and
(iv) A Registration Statement that does not become effective or
does not remain effective for the period specified in Section 4(b) shall be
deemed not to constitute a Registration Statement filed pursuant to this
Section 3, provided that, if such Registration Statement does not become
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effective or does not remain effective for such period solely by reason of
the Initiating Holders' refusal to proceed, it shall be deemed to
constitute a Registration Statement filed pursuant to this Section 3,
unless the Initiating Holders shall have
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elected to pay all expenses in connection with such registration as
aforesaid.
(c) If any registration pursuant to this Section 3 involves an
underwritten offering and the managing underwriter requests that the
participants in such offering grant the underwriters an over-allotment or "green
shoe" option for the purpose of covering over-allotments that may be made by the
underwriters in connection with such offering, then a percentage of the shares
proposed to be sold by each selling Stockholder, which portion shall not exceed
the maximum amount then permitted by the rules of the National Association of
Securities Dealers, Inc. and shall equal the percentage of the shares proposed
to be sold by other sellers in the offering that is applied to the same purpose,
shall be made subject to such over-allotment option, unless otherwise agreed in
the underwriting agreement relating thereto. Each of the Initiating Holders and
the other sellers may withdraw from any Demand Registration pursuant to this
Section 3 by giving written notice to the Company, the managing underwriter, if
any, and the other Stockholders prior to the effective date of such Registration
Statement.
(d) The Company may suspend its obligation to register shares of
Common Stock by a Stockholder pursuant to this Section 3 if, in the opinion of
counsel to the Company, the shares of Common Stock proposed to be sold by such
Stockholder pursuant to this Section 3 can be sold in the same volume and manner
as they are proposed to be sold by such Stockholder in a transaction exempt from
registration pursuant to the Securities Act, as amended, and similar state
securities laws.
(e) Each Stockholder agrees not to sell or offer for sale any of such
Stockholder's shares of Common Stock within 7 days prior to or 90 days after the
effective date of any registration (except as part of such registration).
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4. Registration Procedures.
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If and whenever the Company is required to use its best efforts to
effect the registration of any Stockholder Shares under the Securities Act as
provided in this Agreement, the Company will promptly:
(a) prepare and file with the Securities and Exchange Commission
("SEC") a Registration Statement with respect to such securities and use its
best efforts to cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such Registration
Statement, but in no event for a period of more than 4 months after such
Registration Statement becomes effective;
(c) furnish to counsel (if any) selected by the selling Stockholders
holding a majority of the Stockholder Shares to be sold in such registration,
copies of all documents proposed to be filed with the SEC in connection with
such registration, which documents will be subject to the review of such
counsel;
(d) furnish to each seller of securities such number of conformed
copies of such Registration Statement and of each amendment and supplement
thereto (in each case including all exhibits, except that the Company shall not
be obligated to furnish any seller of securities with more than 2 copies of such
exhibits), such number of copies of the prospectus comprised in such
Registration Statement (including each preliminary prospectus and any
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summary prospectus), in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request in order to
facilitate the disposition of the securities owned by such seller;
(e) use its best efforts to register or qualify such securities
covered by such Registration Statement under such other securities or blue sky
laws of such jurisdictions as may apply, and do any and all other acts and
things which may be necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the securities owned by such seller,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, or to consent to general service of process in any such
jurisdiction;
(f) in connection with an underwritten offering only, furnish to each
seller copies of: (i) an opinion of counsel for the Company, dated the effective
date of the Registration Statement, and (ii) a "comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in the Registration Statement, each covering substantially
the same matters with respect to the Registration Statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountant's letters delivered to
the underwriters in underwritten public offerings of securities;
(g) notify each seller of any such securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, or 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 any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller prepare and furnish to such
seller a reasonable number of copies of a supplement to or an
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amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit 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;
(h) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
12 months, but not more than 18 months, beginning with the first month after the
effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of section 11(a) of the Securities Act; and use its best
efforts to list such securities on any securities exchange on which the Common
Stock is then listed, if such securities are not already so listed and if such
listing is then permitted under the rules of such exchange, and to provide a
transfer agent and registrar (which, in each case, may be the Company) for such
Stockholder Shares not later than the effective date of such registration
statement.
The Company may require each seller of any securities as to which any
registration is being affected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing and as shall be required by law in
connection therewith.
Each Stockholder hereby agrees that upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 4(g),
such holder will promptly discontinue such holder's disposition of Stockholder
Shares pursuant to the Registration Statement covering such Stockholder Shares
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(g), and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
covering such Stockholder Shares at the time of receipt of such notice. In the
event the Company shall give
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such notice, the period mentioned in Section 4(b) shall be extended by the
number of days during the period from and including the date when each seller of
any Stockholder Shares covered by such Registration Statement shall have
received the notice of the event of the kind described in Section 4(g) to but
not including the date when each such seller receives copies of the supplemented
or amended prospectus contemplated by Section 4(g).
5. Indemnification.
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(a) Indemnification by the Company. In the event of any registration
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of any Stockholder Shares under the Securities Act, the Company will, and hereby
does, indemnify and hold harmless, in the case of any Registration Statement
filed pursuant to Sections 2 and 3 hereof, each Stockholder, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arising out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement under which such Stockholder Shares were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company will reimburse each Stockholder for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Company shall not be liable in any such case to the
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extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
Registration Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by or on behalf of such Stockholder specifically stating that it is for
use in the preparation thereof. Such
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indemnity shall remain in full force regardless of any investigation made by or
on behalf of a Stockholder.
(b) Indemnification by Selling Stockholders. As a condition to
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including any Stockholder Shares in any Registration Statement, the Company
shall have received an undertaking satisfactory to it from each Stockholder so
including Stockholder Shares, to indemnify and hold harmless ( in the same
manner and to the same extent as set forth in subdivision (a) of this Section 5)
the Company, and each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such Stockholder specifically stating that it is for use in the preparation
of such Registration Statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, that the
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liability of a Stockholder under this Section 5(b) shall be limited to the
amount of proceeds received by such indemnifying party in the offering giving
rise to such liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer, or controlling Person and shall survive the transfer of such
securities by a Stockholder.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
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party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 5, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
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give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 5, except to the
extent that the indemnifying party is
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actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party shall be entitled
to participate in and, unless in such indemnified party's reasonable judgement a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, to assume the defense thereof jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent (which consent shall
not be unreasonably withheld). No indemnifying party shall, without the consent
of the indemnified party (which consent shall not be unreasonably withheld),
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
(d) Contribution. If the indemnification provided for in this
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Section 5 shall for any reason be held by a court to be unavailable to an
indemnified party under paragraph (a) or (b) hereof in respect of any loss,
claim, damage, or liability, or any action or proceeding in respect thereof,
then, in lieu of the amount paid or payable under subparagraph (a) or (b)
hereof, the indemnified party and the indemnifying party under subparagraph (a)
or (b) hereof shall contribute to the aggregate losses, claims, damages, and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the Company and the Stockholders covered by the
Registration Statement which resulted in such loss, claim, damage or liability,
or action in respect thereof, with respect to the statement or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable consideration, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
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law, in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering of the securities covered by such
Registration Statement. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld.
(e) Other Indemnification. Indemnification and contribution similar
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to that specified in the preceding subdivisions of this Section 5 (with
appropriate modifications) shall be given by the Company and the Stockholders
proposing to offer and sell Stockholder Shares with respect to any required
registration or other qualification of securities under any federal or state law
or regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and contribution
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required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage, or liability is incurred.
(g) Additional Rights. Any indemnification agreements contained herein
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shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party.
6. Stock Certificate Legend.
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A copy of this Agreement shall be filed with the Secretary of the
Company and kept with the records of the Company. Each certificate representing
Stockholder Shares shall
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bear upon its face substantially the following legend, in addition to any other
legends that may be required:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, ("THE SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT, AND
ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS IN THE OPINION OF
COUNSEL, SATISFACTORY TO THE ISSUER, SUCH SALE OR TRANSFER IS EXEMPT
FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE SECURITIES ACT.
The certificate representing Stockholder Shares for sale pursuant to an
effective Registration Statement under the Securities Act or pursuant to Rule
144 (to the extent permitted hereby) shall be replaced, at the expense of the
Company, with certificates not bearing the legend required by this Section.
7. Certificate of Incorporation; By-Laws; Restrictions on Other
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Agreements; No Circumvention; etc.
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Each Stockholder shall vote his shares of Common Stock, at any regular
or special meeting of stockholders of the Company or in any written consent
executed in lieu of such a meeting of stockholders, and shall take all other
actions necessary to ensure that the certificate of incorporation and by-laws of
the Company do not, at any time, conflict with the provisions of this Agreement.
No Stockholder may do indirectly, that which he is not permitted to do by this
Agreement. In the event that any stock or other securities are issued in
respect of, in
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exchange for, or in substitution of, any shares of Common Stock by reason of any
reorganization, recapitalization, reclassification, merger, consolidation,
spinoff, partial or complete liquidation, stock dividend, stock split or revere
stock split, sale of assets, distribution to stockholders or combinations of the
shares of Common Stock or any other change in the Company's capital structure,
such capital stock or other securities shall be deemed subject to this
Agreement, and appropriate adjustments shall be made in the percentages
specified in this Agreement and as otherwise may be necessary to fairly and
equitably preserve, as far as practicable, the original rights and obligations
of the Parties.
8. Participation in Underwritten Registrations.
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No Stockholder may participate in any underwritten registration
hereunder unless such Stockholder (i) agrees to sell such Stockholder's
securities on the basis provided in any underwriting arrangements approved by
the Stockholders entitled hereunder to approve such arrangements and (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 this Agreement.
9. Termination.
-----------
This Agreement shall terminate on the earlier of (i) 10 years from the
date of this Agreement or (ii) the date on which neither ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or
▇▇▇▇▇ own any Common Stock.
10. Binding Effect.
--------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective heirs, legal
representatives and successors.
17
11. Notices.
-------
Notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed duly given when
delivered personally (or delivery is refused) or sent by mail (certified or
registered mail, postage prepaid, return receipt requested), as follows:
(a) If to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) If to ▇▇▇ ▇▇▇▇▇:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) If to ▇▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(d) If to ASI Solutions Incorporated:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
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or at such other address as such party shall have furnished to the other parties
in writing.
12. Entire Agreement; Amendments.
----------------------------
This Agreement embodies the entire agreement and understanding between
the Parties relating to the subject matter hereof. Neither this Agreement nor
any provision hereof may be changed, discharged or terminated orally, without an
instrument in writing signed by the Company and each of the Stockholders at the
time owning Stockholder Shares.
13. Governing Law.
-------------
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware regardless of the law that
might be applied under principles of conflicts of law.
14. Headings.
--------
All headings are inserted herein for convenience only and do not form
a part of this Agreement.
15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date written above.
ASI SOLUTIONS INCORPORATED
By: ____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
________________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________________________
▇▇▇ ▇▇▇▇▇
________________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
20