Exhibit 10.27
REGISTRATION RIGHTS AGREEMENT dated
as of the "Closing Date" (as such term is
defined in the Merger Agreement), between
OPUS360 CORPORATION, a Delaware corporation
(the "Corporation"), and the PM
SECURITYHOLDERS (as defined herein).
The PM Securityholders have been issued shares of the Corporation's
Common Stock (as defined below) pursuant to that certain agreement and plan of
merger (the "Merger Agreement") dated as of January 30, 2000, among the
Corporation, Opus PM Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of the Corporation ("OpusPM"), PeopleMover, Inc., a Delaware
corporation ("PeopleMover"), the Stockholder Representative (as defined in
Section 8.5 of the Merger Agreement), and the PM Securityholders (as to Article
II, Section 4.2 and Article IX thereof, and as to certain PM Securityholders,
Article VIII thereof). The Corporation and the PM Securityholders deem it to be
in their respective best interests to enter into this Agreement to set forth the
rights of the PM Securityholders in connection with public offerings and sales
of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. Definitions.
As used herein, the following terms shall have the following
respective meanings:
"Additional Registrable Shares" means, at any time with respect to
any Additional Securityholder, the Registrable Shares held by such Additional
Securityholder (but only if such Additional Securityholder is entitled (but not
pursuant to this Agreement) to the registration of such Registrable Shares by
the Corporation under the Securities Act for sale to the public).
"Additional Securityholder" means any holder of Restricted
Securities who or which is entitled (but not pursuant to this Agreement) to the
registration of such Restricted Securities by the Corporation under the
Securities Act for sale to the public.
"Agreement" means this Registration Rights Agreement, as amended,
supplemented or otherwise modified from time to time.
"Business Day" means any day, other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Common Stock" means the common stock, par value $.001 per share, of
the Corporation (and such other class of common stock of the Corporation, or any
successor thereto, into which the Common Stock may be converted or reclassified,
and all references herein to the Common Stock shall mean such other class of
common stock, if applicable).
"Conversion Shares" means the Series A Conversion Shares and the
Series B Conversion Shares.
"Corporation" has the meaning assigned to such term in the caption
to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
SEC promulgated thereunder, all as the same may from time to time be in effect.
"Governmental Entity" means any government or political subdivision
or department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Initial Common Shares" means the Registrable Shares that are (i)
shares of Common Stock issued or issuable to ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or USWeb/CKS Corporation or (ii) shares
of Common Stock issued on or with respect to the shares of Common Stock referred
to in clause (i) above.
"Initial Warrants" means (i) the warrants dated May 19, 1999 and
August 17, 1999 issued by the Corporation to Silicon Valley Bank to purchase
shares of Common Stock, (ii) the warrants dated December 24, 1998 issued by the
Corporation to each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, G&R Partnership, LP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to purchase shares of Common Stock, and (iii)
the warrants dated September 3, 1999 and January 15, 2000 issued by the
Corporation to ▇▇▇▇▇▇▇▇▇ & Co., LLC.
"Law" means any foreign, federal, state or local law, statute,
treaty, rule, directive, regulation, ordinance or similar provision having the
force or effect of law or any Order.
"Majority of the PM Securityholders" means those PM Securityholders
who or which hold in the aggregate in excess of 50% of all of the PM Registrable
Shares.
"Material Transaction" shall mean any material transaction in which
the Corporation or any of its Subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction or event that would require
disclosure pursuant to the Exchange Act if the Corporation were a reporting
company thereunder, and with respect to which the Board of Directors of the
Corporation reasonably has determined in good faith that compliance with this
Agreement may reasonably be expected to either materially interfere with the
Corporation's or such Subsidiary's ability to consummate such transaction in a
timely fashion or require the Corporation to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
"Orders" means any enforceable judgments, writs, decrees,
declarations, injunctions, orders, stipulations, compliance agreement or
settlement agreements issued or imposed by, or entered into with, a Governmental
Entity.
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"Other Shares" means, at any time, those shares of Common Stock
which do not constitute Primary Shares, PM Registrable Shares or Additional
Registrable Shares.
"Person" shall be construed as broadly as possible and shall include
an individual, a corporation (including a not-for-profit corporation), a
company, an association, a joint stock company, a partnership (including a
limited liability partnership), a limited liability company, a joint venture, a
trust or an unincorporated organization and a Governmental Entity.
"PM Registrable Shares" means the Registrable Shares that are (i)
shares of Common Stock issued to the Persons listed on Schedule I on the date
hereof, but only to the extent of the number of such shares of Common Stock set
forth opposite their names on Schedule I (which aggregate number shall not
exceed ___________ shares of Common Stock) or (ii) shares of Common Stock issued
on or with respect to the shares of Common Stock referred to in clause (i)
above.
"PM Securityholders" means, collectively, (i) the Persons listed on
Schedule I on the date hereof, (ii) any other Persons listed on Schedule I from
time to time, and (iii) any purchaser, assignee or other transferee of
Restricted Securities held by any of the foregoing in a purchase, assignment or
other transfer permitted under Section 17 and in which such purchaser, assignee
or other transferee has complied in full with the joinder requirements set forth
in Section 17. Upon the addition of each new PM Securityholder as a party to
this Agreement, the Corporation shall amend Schedule I solely to reflect the
name and address of such new PM Securityholder, and the Corporation shall
distribute to the PM Securityholders such amended Schedule I.
"Primary Shares" means, at any time, the authorized but unissued
shares of Common Stock or Common Stock held by the Corporation in its treasury.
"Prospectus" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the PM Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Public Offering" means a public offering of Common Stock pursuant
to a registration statement declared effective under the Securities Act, except
that a Public Offering shall not include an offering of securities to be issued
as consideration in connection with a business acquisition or an offering of
securities issuable pursuant to an employee benefit plan.
"Registering PM Securityholders" means, with respect to any
registration of PM Registrable Shares, those PM Securityholders who or which
hold the PM Registrable Shares included in such registration.
"Registrable Shares" means, at any time with respect to any PM
Securityholder or Additional Securityholder, the shares of Common Stock held by
such PM Securityholder or Additional Securityholder that constitute Restricted
Securities. For purposes of this definition, a
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PM Securityholder or Additional Securityholder shall be deemed to be the holder
of shares of Common Stock whenever such PM Securityholder or Additional
Securityholder has the right to acquire, directly or indirectly, such Common
Stock upon the conversion or exercise of Restricted Securities (but disregarding
any restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Registration Date" means the date upon which the registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"Registration Statement" means any registration statement of the
Corporation which covers any of the PM Registrable Shares, and all amendments
and supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Restricted Securities" means, at any time, with respect to any
Person, the shares of Common Stock, the shares of Series A Preferred Stock, the
shares of Series B Preferred Stock, the Initial Warrants and any other
securities which by their terms are directly or indirectly exercisable or
exchangeable for or convertible into any of the foregoing securities, and any
securities received on or with respect to any of the foregoing securities, in
each case which are held by such Person. As to particular securities
constituting Restricted Securities, such securities shall cease to be Restricted
Securities when (A) they have been registered under the Securities Act, the
Registration Statement in connection therewith has been declared effective and
such Restricted Securities have been disposed of pursuant to and in the manner
described in such effective Registration Statement, (B) they are eligible to be
sold or distributed by the holder thereof pursuant to Rule 144 of the Securities
Act within any consecutive three-month period (including, without limitation,
subsection (k) of Rule 144) without volume limitations, (C) they have been
otherwise transferred and new certificates or other evidences of ownership for
them not bearing a restrictive legend and not subject to any stop transfer order
or other restriction on transfer shall have been delivered by the Corporation or
the issuer of other securities issued in exchange for the Restricted Securities,
or (D) they have ceased to be outstanding.
"SEC" means the United States Securities and Exchange Commission.
"securities" means, with respect to any Person, such Person's
"securities," as defined in Section 2(1) of the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the SEC
promulgated thereunder, all as the same may from time to time be in effect.
"Series A Conversion Shares" means the Registrable Shares that are
(i) shares of Common Stock issued or issuable upon the conversion of Series A
Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in clause (i) above or (iii) shares of Common
Stock issued on or with respect to the Series A Preferred Stock.
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"Series A Preferred Stock" means the Corporation's Series A
Convertible Preferred Stock, par value $.001 per share.
"Series B Conversion Shares" means the Registrable Shares that are
(i) shares of Common Stock issued or issuable upon the conversion of Series B
Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in clause (i) above or (iii) shares of Common
Stock issued on or with respect to the Series B Preferred Stock.
"Series B Preferred Stock" means the Corporation's Series B
Convertible Preferred Stock, par value $.001 per share.
"Shares" means the Registrable Shares, the PM Registrable Shares,
the Additional Registrable Shares, the SP Registrable Shares, the Initial Common
Shares, the Conversion Shares and the Warrant Shares.
"SP Registrable Shares" means (i) any Additional Registrable Shares
issued by the Corporation to any Strategic Partner in connection with such
Strategic Partner's entry into a strategic arrangement with the Corporation for
the provision by either party to the other party of goods, services, technology,
expertise or other value and (ii) any other Additional Registrable Shares issued
on or with respect to the Additional Registrable Shares referred to in clause
(i) above.
"Stockholders' Agreement" means the Stockholders' Agreement dated as
of December 24, 1998, among the Company and the other parties thereto, as
amended, supplemented, modified and in effect from time to time.
"Strategic Partner" means a Person who or which, at the time in
question, has entered into, or is simultaneously entering into or has agreed to
enter into, a strategic arrangement with the Corporation for the provision by
either party to the other party of goods, services, technology, expertise or
other value.
"Subsidiary" means, as to any Person, any other Person of which more
than 50% of the shares of the voting stock or other voting interests are owned
or controlled, or the ability to select or elect 50% or more of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries.
"Warrant Shares" means the Registrable Shares that are (i) shares of
Common Stock issued or issuable upon the exercise of the Initial Warrants, (ii)
shares of Common Stock issued on or with respect to the shares of Common Stock
referred to in clause (i) above or (iii) shares of Common Stock issued on or
with respect to the Initial Warrants.
2. Piggyback Registration.
(a) If the Corporation proposes for any reason to register Primary
Shares, Additional Registrable Shares or Other Shares under the Securities Act
after the closing of an initial Public Offering of Common Stock (other than on
Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall give written notice to the PM
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Securityholders of its intention to so register such Primary Shares, Additional
Registrable Shares or Other Shares at least 20 days before the initial filing of
the registration statement for such Primary Shares, Additional Registrable
Shares or Other Shares and, upon the written request, delivered to the
Corporation within 10 days after delivery of any such written notice by the
Corporation, of any PM Securityholder to include in such registration PM
Registrable Shares (which written request shall specify the number of PM
Registrable Shares proposed to be included in such registration) and shall state
the request of such PM Securityholder to sell or dispose of such PM Registrable
Shares), the Corporation shall use its reasonable best efforts to cause all such
PM Registrable Shares to be included in such registration on the same terms and
conditions as the Primary Shares, Additional Registrable Shares or Other Shares
otherwise being sold or disposed of in such registration; provided, however, if
the managing underwriter(s) advise the Corporation that the inclusion of all or
any portion of the PM Registrable Shares, Primary Shares, Additional Registrable
Shares and/or Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of all or any
portion of such securities, then the number of PM Registrable Shares, Primary
Shares, Additional Registrable Shares and/or Other Shares proposed to be
included in such registration shall be included in the following order:
(i) If such registration is initiated by the Corporation to register
Primary Shares, Other Shares or Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares, Warrant Shares or
SP Registrable Shares, or by any holder of the foregoing:
(A) first, the Primary Shares;
(B) second, the Additional Registrable Shares constituting SP
Registrable Shares, Initial Common Shares, Conversion Shares or
Warrant Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated between (x) the Additional Securityholders who or which
have requested the inclusion of SP Registrable Shares in such
registration on the one hand and (y) the other Additional
Securityholders who or which have requested the inclusion of
Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares in such registration on the
other hand, in proportion to the aggregate number of Shares held by
each such group of Additional Securityholders at the time of such
registration, with the aggregate number of Shares allocated to the
Additional Securityholders described in each of clauses (x) and (y)
above further allocated among such Additional Securityholders in
accordance with the applicable provisions of any agreements between
the Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of such registration, or, in the absence of any
applicable provisions (i) with respect to the Additional
Securityholders described in clause (x) above, pro rata among all
such Additional Securityholders based upon the number of Additional
Registrable Shares constituting SP Registrable Shares held by each
such Additional Securityholder at the time of such registration, and
(ii) with respect to the Additional
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Securityholders described in clause (y) above, pro rata among all
such Additional Securityholders based upon the number of Additional
Registrable Shares constituting Initial Common Shares, Conversion
Shares or Warrant Shares held by each such Additional Securityholder
at the time of such registration);
(C) third, the PM Registrable Shares requested by the PM
Securityholders to be included in such registration (or, if
necessary, such Shares pro rata among all such PM Securityholders
based on the aggregate number of PM Registrable Shares held by each
such Person at the time of such registration);
(D) fourth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of such registration, or, in the absence of any
applicable provisions, pro rata among all such Additional
Securityholders based upon the number of Additional Registrable
Shares not constituting Initial Common Shares, Conversion Shares,
Warrant Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of such registration); and
(E) fifth, the Other Shares.
(ii) If such registration is initiated by Additional Securityholders
who or which request the inclusion of their Additional Registrable Shares
constituting SP Registrable Shares in such registration:
(A) first, the Additional Registrable Shares constituting SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares pro
rata among all such Additional Securityholders based on the
aggregate number of SP Registrable Shares held by each such Person
at the time of such registration);
(B) second, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all such
Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of such
registration, or, in the absence of any applicable provisions, pro
rata among all such Additional Securityholders based upon the number
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such Additional
Securityholder at the time of such registration);
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(C) third, the Primary Shares;
(D) fourth, the PM Registrable Shares requested by the PM
Securityholders to be included in such registration (or, if
necessary, such Shares pro rata among all such PM Securityholders
based on the aggregate number of PM Registrable Shares held by each
such Person at the time of such registration);
(E) fifth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of such registration, or, in the absence of any
applicable provisions, pro rata among all such Additional
Securityholders based upon the number of Additional Registrable
Shares not constituting Initial Common Shares, Conversion Shares,
Warrant Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of such registration); and
(F) six, the Other Shares.
(iii) If such registration is initiated by Additional
Securityholders who or which request the inclusion of Additional
Registrable Shares constituting Initial Common Shares, Conversion Shares
or Warrant Shares in such registration:
(A) first, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all such
Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of such
registration, or, in the absence of any applicable provisions, pro
rata among all such Additional Securityholders based upon the number
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such Additional
Securityholder at the time of such registration);
(B) second, the Additional Registrable Shares constituting SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares pro
rata among all such Additional Securityholders based on the
aggregate number of SP Registrable Shares held by each such
Additional Securityholder at the time of such registration);
(C) third, the Primary Shares;
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(D) fourth, the PM Registrable Shares requested by the PM
Securityholders to be included in such registration (or, if
necessary, such Shares pro rata among all such PM Securityholders
based on the aggregate number of PM Registrable Shares held by each
such PM Securityholder at the time of such registration);
(E) fifth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of such registration, or, in the absence of any
applicable provisions, pro rata among all such Additional
Securityholders based upon the number of Additional Registrable
Shares not constituting Initial Common Shares, Conversion Shares,
Warrant Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of such registration); and
(F) six, the Other Shares.
(b) Anything contained in this Agreement to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to Section 2(a)
to include all or any portion of the PM Registrable Shares of the PM
Securityholders in more than one registration of Primary Shares, Additional
Registrable Shares and/or Other Shares under the Securities Act after the
closing of an initial Public Offering of Common Stock (with the participation of
the PM Securityholders in such registration being subject to the terms and
conditions of Section 2(a)). The Majority of the PM Securityholders in
compliance with this Section 2 shall determine the applicable registration
statement with respect to which a request for the registration of PM Registrable
Shares shall be submitted to the Corporation pursuant to Section 2(a). The PM
Securityholders requesting a registration of PM Registrable Shares pursuant to
Section 2(a) shall provide written notice to the Corporation of the satisfaction
of such requirement; provided, however, that in no event shall such one
registration request be fulfilled if such registration statement is withdrawn
for any reason prior to effectiveness; and provided, further, however, the
Corporation shall have fulfilled its obligations pursuant to Section 2(a) if at
least 25% of the aggregate number of PM Registrable Shares requested by PM
Securityholders to be registered on such registration statement are included in
such registration statement at the time of its initial effectiveness.
3. Holdback Agreement.
If the Corporation at any time shall register shares of Common Stock
under the Securities Act in an aggregate amount of at least $5,000,000
(excluding any registrations on Form S-4 or S-8) for sale to the public, no PM
Securityholder shall sell publicly, make any short sale of, grant any option for
the purchase of, or otherwise dispose publicly of, any capital stock of the
Corporation (other than those shares of Common Stock included in such
registration
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pursuant to Section 2(a)) without, in each such instance, the prior written
consent of the Corporation, for a period designated by the Corporation in
writing to the PM Securityholders, which period shall begin not more than 15
days prior to the expected date of the effectiveness of the registration
statement pursuant to which such public offering shall be made and shall not
last more than 180 days after the date on which such registration statement
became effective, whether or not such PM Securityholder participates in such
registration. Each PM Securityholder agrees that the Corporation may instruct
its transfer agent to place stop transfer notations on its records to enforce
this Section 3.
4. Preparation and Filing.
If the Corporation is obligated pursuant to Section 2 to use its
reasonable best efforts to cause any PM Registrable Shares to be included in a
registration of Primary Shares, Additional Registrable Shares or Other Shares
otherwise being sold in such registration, the Corporation shall, subject to,
and only to the extent not contrary to or inconsistent with, the terms and
conditions on which such Primary Shares, Additional Registrable Shares or Other
Shares otherwise being sold in such registration:
(a) use its reasonable best efforts to cause the Registration
Statement that registers such PM Registrable Shares to become and remain
effective until the earlier to occur of (i) 90 days from the date of the
effectiveness of such Registration Statement and (ii) such time as all of such
PM Registrable Shares have been disposed of;
(b) furnish, at least five Business Days before filing the
Registration Statement that registers such PM Registrable Shares, a Prospectus
relating thereto and any amendments or supplements relating to such Registration
Statement or Prospectus, to one counsel designated in writing by the Majority of
the PM Securityholders (the "PM Securityholders' Counsel"), copies of all such
documents proposed to be filed with the SEC (it being understood that such five
Business Day period need not apply to successive drafts of the same document
proposed to be filed so long as such successive drafts are supplied to the PM
Securityholders' Counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
(c) 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 until the earlier
to occur of (i) 90 days or (ii) such time as all of such PM Registrable Shares
have been disposed of, and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of such PM Registrable Shares;
(d) notify the PM Securityholders' Counsel promptly in writing of
(i) any comments by the SEC with respect to such Registration Statement or
Prospectus, or any request by the SEC for the amending or supplementing thereof
or for additional information with respect thereto, (ii) the issuance by the SEC
of any stop order suspending the effectiveness of such Registration Statement or
Prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceedings for that purpose (and the Corporation shall use
its reasonable best efforts to prevent the issuance thereof or, if issued, to
obtain its withdrawal) and (iii) the receipt
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by the Corporation of any notification with respect to the suspension of the
qualification of such PM Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding(s) for such purposes;
(e) use its reasonable best efforts to register or qualify such PM
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any Registering PM Securityholder may reasonably request, to
keep such registrations or qualifications in effect for so long as such
Registration Statement covering such PM Registrable Shares remains in effect and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Registering PM Securityholder to consummate the sale or
disposition in such jurisdictions of the PM Registrable Shares owned by such
Registering PM Securityholder; provided, however, that the Corporation will not
be required to qualify generally to do business, to subject itself to general
taxation or consent to general service of process in any jurisdiction where it
would not otherwise be required to do so but for this Section 4(e) or to provide
any material undertaking or make any changes in its bylaws or certificate of
incorporation which its Board of Directors determines to be contrary to or not
in the best interests of the Corporation;
(f) furnish to each Registering PM Securityholder such number of
copies of a summary Prospectus, if any, or other Prospectus, including a
preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Registering PM Securityholder may
reasonably request in order to facilitate the public sale or other disposition
of the PM Registrable Shares held by Registering PM Securityholder;
(g) notify on a timely basis each Registering PM Securityholder at
any time when a Prospectus relating to such PM Registrable Shares is required to
be delivered under the Securities Act within the appropriate period specified in
Section 4(a), of the happening of any event known to the Corporation 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 light of the circumstances then existing and, at the
request of such Registering PM Securityholder, prepare and furnish to such
Registering PM Securityholder a reasonable number of copies of a supplement to
or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the offerees of such PM Registrable Shares, 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 light of the circumstances then existing;
(h) subject to the execution of confidentiality or similar
agreements in form and substance satisfactory to the Corporation, make
available, upon reasonable notice and during normal business hours, for
inspection by the Registering PM Securityholders any underwriter participating
in any disposition pursuant to such Registration Statement and any attorney,
accountant or other agent retained by the Registering PM Securityholders or
underwriter (collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Corporation
(collectively, the "Records"), as shall be reasonably necessary to enable such
Persons to exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all information
(together with the
11
Records, the "Information") reasonably requested by any such Inspector in
connection with such Registration Statement (any of the Information which the
Corporation determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors, unless (i) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the Registration Statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or, upon the written advice of counsel,
is otherwise required by law, or (iii) such Information has been made generally
available to the public; and each Registering PM Securityholder agrees that it
will, upon learning that disclosure of such Information is sought in a court of
competent jurisdiction, give notice to the Corporation and allow the
Corporation, at the Corporation's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential by the Corporation);
(i) use its reasonable best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by cold
comfort letters;
(j) use its reasonable best efforts to obtain from its counsel an
opinion or opinions in customary form;
(k) provide a transfer agent and registrar (which may be the same
Person and which may be the Corporation) for such PM Registrable Shares;
(l) issue to any underwriter to which any Registrable PM
Securityholder may sell such PM Registrable Shares in such offering,
certificates evidencing such PM Registrable Shares;
(m) list such PM Registrable Shares on any national securities
exchange on which any shares of Common Stock are listed or, if Common Stock is
not listed on a national securities exchange, use its reasonable best efforts to
qualify such PM Registrable Shares for inclusion on the national automated
quotation system of the National Association of Securities Dealers, Inc. (the
"NASD"), or such other national securities exchange as the holders of a majority
of such PM Registrable Shares shall reasonably request in writing; and
(n) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make generally available to its
securityholders, as soon as reasonably practicable, earnings statements (in form
complying with Rule 158 under the Securities Act) covering a 12-month period
beginning not later than the first day of the Corporation's fiscal quarter next
following the effective date of the Registration Statement.
Each Registering PM Securityholder, upon the receipt of any notice
from the Corporation of any event of the kind described in Section 4(h), shall
forthwith discontinue disposition of PM Registrable Shares pursuant to the
Registration Statement until such Registering PM Securityholder's receipt of
copies of the supplemented or amended Prospectus contemplated by Section 4(h),
and, if so directed by the Corporation, such Registering PM Securityholder shall
deliver to the Corporation all copies, other than permanent file copies then in
such PM Securityholder's possession, of the Prospectus covering such PM
Registrable Shares
12
at the time of receipt of such notice or, if so directed by the Corporation,
destroy all such copies and deliver to the Corporation a certificate of
destruction in respect thereof.
5. Expenses.
All expenses incurred by the Corporation in complying with Section
4, including, without limitation, all registration and filing fees (including
all expenses incident to filing with the NASD), fees and expenses of complying
with securities and blue sky laws, printing expenses, fees, expenses and
disbursements of the Corporation's counsel and accountants and fees, expenses
and disbursements (in an aggregate amount not to exceed $7,500) of the PM
Securityholders' Counsel shall be paid or satisfied by the Corporation;
provided, however, that all underwriting discounts and selling commissions
applicable to the PM Registrable Shares shall not be borne by the Corporation
and shall be borne by the Registering PM Securityholders selling such
Registrable Securities, in proportion to the number of PM Registrable Shares
sold by each such Registering PM Securityholder.
6. Indemnification.
(a) In connection with any registration of any PM Registrable Shares
under the Securities Act pursuant to this Agreement, the Corporation shall
indemnify and hold harmless each holder of such PM Registrable Shares, each
underwriter, broker or any other Person acting on behalf of any such holder and
each other Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing Persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary Prospectus or final Prospectus contained therein or otherwise filed
with the SEC, any amendment or supplement thereto or any document incident to
registration or qualification of any PM Registrable Shares, or arise out of or
are based upon 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, with respect to any Prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state securities or
blue sky laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws, and the Corporation
shall promptly reimburse each such holder, underwriter, broker or other Person
acting on behalf of any such holder and each such controlling Person for any
legal or other expenses incurred by any of them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Corporation shall not be liable (i) to any such Person to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in said Registration Statement, preliminary Prospectus, final
Prospectus, amendment, supplement or document incident to registration or
qualification of any PM Registrable Shares in reliance upon and in conformity
with information furnished to the Corporation or such underwriter by the PM
Securityholders, or a Person duly acting on the PM Securityholder's
13
behalf, by written materials provided by the PM Securityholders, or a Person
duly acting on the PM Securityholder's behalf, specifically for use in
connection with the preparation thereof, and (ii) for any amounts paid in
settlement of any such loss, claim, damage or liability if such settlement is
effected without the prior written consent of the Corporation which consent
shall not be unreasonably withheld or delayed; provided further, however, that
the foregoing indemnity agreement is subject to the condition that, insofar as
it relates to any untrue statement, allegedly untrue statement, omission or
alleged omission made in any preliminary Prospectus but eliminated or remedied
in the Prospectus, as amended or supplemented (filed pursuant to Rule 424 of the
Securities Act), such indemnity agreement shall not inure to the benefit of any
indemnified party from whom the Person asserting any loss, claim, damage,
liability or expense purchased the PM Registrable Shares which are the subject
thereof, if a copy of such Prospectus, as amended or supplemented, had been
timely made available to such indemnified Person and such Prospectus, as amended
or supplemented, was not delivered to such Person with or prior to the written
confirmation of the sale of such PM Registrable Shares to such Person.
(b) In connection with any registration of PM Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of PM
Registrable Shares shall, severally and not jointly, indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 6(a)) the
Corporation, each director of the Corporation who signs such Registration
Statement, each officer of the Corporation who signs such Registration
Statement, each other holder of PM Registrable Shares, Primary Shares,
Additional Registrable Shares or Other Shares included in such Registration
Statement, each underwriter, broker or any other Person acting on behalf of any
such holder and each other Person, if any, who controls any of the foregoing
Persons within the meaning of the Securities Act with respect to any statement
contained in or omission from such Registration Statement, any preliminary
Prospectus or final Prospectus contained therein or otherwise filed with the
SEC, any amendment or supplement thereto or any document incident to
registration or qualification of any PM Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with information furnished
to the Corporation or such underwriter by written materials provided by such PM
Securityholder, or a Person duly acting on such PM Securityholder's behalf,
specifically for use in connection with the preparation thereof; provided,
however, that the maximum amount of liability in respect of such indemnification
shall be limited, in the case of each holder of PM Registrable Shares, to an
amount equal to the net proceeds actually received by such holder from the sale
of PM Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of written notice
of the commencement of any action involving a claim referred to in Section 6(a)
or Section 6(b), such indemnified party will, if a claim in respect thereof is
made against an indemnifying party, promptly give written notice to the latter
of the commencement of such action (provided that an indemnified party's failure
to give such notice in a timely manner shall only relieve the indemnification
obligations of an indemnifying party to the extent such indemnifying party is
prejudiced by such failure). In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified in writing 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
14
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded based upon the advice of external counsel that there may be one or
more legal or equitable defenses available to such indemnified party which
conflict with those available to the indemnifying party, or that such claim or
litigation involves or could have an effect upon matters beyond the scope of the
indemnity agreement provided in this Section 6, the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such indemnified
party and any Person controlling such indemnified party for that portion of the
reasonable fees, expenses and reasonable disbursements of any one counsel
satisfactory to the indemnifying party which is reasonably related to the
matters covered by the indemnity agreement provided in this Section 6. The
indemnifying party shall not be liable to indemnify any indemnified party for
any settlement of any claim or action effected without the written consent of
the indemnifying party. Unless otherwise agreed to in writing by the indemnified
party, the indemnifying party may not settle any claim or action brought against
an indemnified party unless such indemnified party is released from all and any
liability as part of such settlement.
(d) If the indemnification provided for in this Section 6 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action 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 hand in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations; provided, however, that the maximum amount of liability in
respect of such contribution shall be limited, in the case of each holder of PM
Registrable Shares, to an amount equal to the net proceeds actually received by
such holder from the sale of PM Registrable Shares effected pursuant to such
registration. 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 omission to
state a material fact or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party or
their respective agents and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant hereto were determined by pro rata allocation or by any other method or
allocation which does not take account of the equitable considerations referred
to herein. No person guilty of fraudulent misrepresentation shall be entitled to
contribution from any Person.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive the transfer of
securities.
7. Underwriting Agreement.
15
Notwithstanding the provisions of Sections 4 through 6, to the
extent that the PM Securityholders shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more matters
addressed in such Sections, the provisions contained in such Sections addressing
such matters shall be of no force or effect with respect to such registration,
but this provision shall not apply to the Corporation if the Corporation is not
a party to the underwriting or similar agreement as evidenced by a written
instrument.
8. Suspension.
Anything contained in this Agreement to the contrary
notwithstanding, the Corporation may (but not more than twice with respect to
each Registration Statement), by notice in writing to each holder of PM
Registrable Shares to which a Prospectus relates, require such holder to
suspend, for up to 90 days (the "Suspension Period"), the use of any Prospectus
included in the Registration Statement filed under Section 2 if a Material
Transaction exists that would require an amendment to such Registration
Statement or supplement to such Prospectus (including any such amendment or
supplement made through incorporation by reference to a report filed under
Section 13 of the Exchange Act). The period during which such Prospectus must
remain effective shall be extended by a period equal to the aggregate number of
days which equal the Suspension Period. The Corporation may (but shall not be
obligated to) withdraw the effectiveness of any Registration Statement subject
to this provision.
9. Information by Holder.
(a) Each holder of PM Registrable Shares to be included in any such
registration shall promptly furnish to the Corporation and the managing
underwriter such written information regarding such holder and the distribution
proposed by such holder as the Corporation or the managing underwriter may
reasonably request and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
(b) Each holder of PM Registrable Shares, by such holder's
acceptance of inclusion of all or a portion of its PM Registrable Shares in a
Registration Statement, agrees to cooperate with the Corporation as reasonably
requested by the Corporation in connection with the preparation and filing of
the Registration Statement.
(c) No holder of PM Registrable Shares to be included in an
underwritten Registration Statement may participate in such offering unless it:
(i) agrees to sell its PM Registrable Shares on the basis provided in any
underwriting arrangement in usual and customary form entered into by the
Corporation; (ii) completes and executes all questionnaires, lock-up agreements
and other documents required under the terms of such underwriting agreements and
(iii) agrees to pay its pro rata share of all underwriting discounts and
commissions and any expenses in excess of those payable by the Corporation in
Section 5.
10. Exchange Act Compliance.
From the Registration Date or such earlier date as a registration
statement filed by the Corporation pursuant to the Exchange Act relating to any
class of the Corporation's securities shall have become effective, the
Corporation shall comply with all of the reporting requirements
16
of the Exchange Act applicable to it (whether or not it shall be required to do
so, but specifically excluding Section 14 of the Exchange Act if not then
applicable to the Corporation) and shall comply with all other public
information reporting requirements of the SEC applicable to it and which are
conditions to the availability of Rule 144 of the Securities Act for the sale of
Common Stock. The Corporation shall cooperate with the PM Securityholders in
supplying such information as may be necessary for the PM Securityholders to
complete and file any information reporting forms presently or hereafter
required by the SEC as a condition to the availability of Rule 144 of the
Securities Act.
11. Legends on Certificates.
(a) Each certificate issued after the date hereof that represents
Restricted Securities shall (unless otherwise permitted by the provisions of
this Section 11) be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any other legend required by
law or applicable agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO THE TERMS AND CONDITIONS OF A REGISTRATION RIGHTS
AGREEMENT DATED AS OF FEBRUARY __, 2000, BETWEEN OPUS360
CORPORATION AND THE PM SECURITYHOLDERS (AS DEFINED THEREIN),
AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
AND IN EFFECT FROM TIME TO TIME. COPIES OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SUCH COMPANY
AT ITS PRINCIPAL EXECUTIVE OFFICE."
The Corporation agrees to remove, or cause its transfer agent to
remove, the legend set forth in this Section 11(a) from a certificate
representing securities issued by the Corporation if such securities are sold
pursuant to an effective registration statement under the Securities Act or
there is delivered to the Corporation an opinion of counsel selected by the
holder of such certificate, which counsel and opinion shall each be reasonably
satisfactory to the Corporation, that the securities represented thereby need no
longer be subject to restrictions on resale under the Securities Act.
17
(b) Each PM Securityholder consents to the Corporation making a
notation on its records and giving instructions to any transfer agent of such PM
Securityholder's Restricted Securities in order to implement the restrictions on
transfer as set forth in this Section 11.
12. Mergers, Etc.
The Corporation shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which the Corporation shall not be
the surviving corporation unless the surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Corporation under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to include the
shares of common stock, if any, that holders of Registrable Shares would be
entitled to receive in exchange for Common Stock under any such merger,
consolidation or reorganization; provided, however, that, to the extent holders
of Registrable Shares receive securities that are by their terms convertible
into shares of common stock of the issuer thereof, then only such shares of
common stock as are issued or issuable upon conversion of said convertible
securities shall be included within the definition of "Registrable Shares";
provided, however, nothing contained in this Section 12 shall enlarge or
otherwise modify the voting power in respect of the PM Registrable Shares as it
relates to the approval or consent of any such fundamental transaction.
13. Nominees for Beneficial Owners.
If Registrable Shares are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
holder of such Registrable Shares for purposes of any request or other action by
any holder or holders of Registrable Shares pursuant to this Agreement (or any
determination of any number of percentage of shares constituting Registrable
Shares held by any holder or holders of Registrable Shares contemplated by this
Agreement); provided, however, that the Corporation shall have received
assurances reasonably satisfactory to it of such beneficial ownership.
14. Termination.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any PM Registrable Shares or Additional
Registrable Shares outstanding, provided, however, that Section 5 and Section 6
shall survive the termination of this Agreement.
15. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the
Corporation and the PM Securityholders and, subject to Section 16, the
respective successors and assigns of the Corporation and the PM Securityholders.
16. Assignment.
Subject to the applicable limitations and conditions contained in
the Stockholders' Agreement and each of the Investment Letter, the Escrow
Agreement, the Merger Agreement, the Restricted Stock Vesting Agreement, any
applicable employment agreements between
18
employees of PeopleMover and the Surviving Corporation (as such term is defined
in Section 1.1 of the Merger Agreement) (each of the foregoing agreements as
entered into in connection with and contemplated by the Merger Agreement), each
PM Securityholder may sell, assign or otherwise transfer its rights hereunder to
any purchaser, assignee or other transferee of the PM Registrable Shares of such
PM Securityholder; provided, however, that any such purchaser, assignee or other
transferee, if not already a party to this Agreement, shall, as a condition to
the effectiveness of such sale, assignment or other transfer, be required to
execute a written joinder to this Agreement agreeing to be treated as a PM
Securityholder under this Agreement, and to be bound by and comply with all of
the applicable terms and provisions hereof (and, if necessary, any other
agreement or instrument requested by the Corporation), whereupon such purchaser,
assignee or transferee shall have the benefits of, and shall be subject to the
restrictions contained in, this Agreement as if such purchaser or transferee was
originally a PM Securityholder and had originally been a party hereto. Any
assignment in violation of the above provision shall be null and void.
17. Notices.
All notices, requests, demands, claims, consents or other
communications that are given or made hereunder to any party hereto shall be in
writing and shall be given or made by physical delivery, U.S. mail (registered
or certified mail, postage prepaid, return receipt requested) or overnight
courier or by transmission by facsimile or electronic mail to such party at its,
his or her address (or facsimile number or electronic mail address) set forth
below, or such other address (or facsimile number or electronic mail address) as
shall have been previously specified by like notice by such party:
19
(i) if to the Corporation, to
Opus360 Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a copy (which shall not constitute notice) to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇@▇▇▇.▇▇▇
(ii) if to any PM Securityholder, to such PM Securityholder
at the address set forth on Schedule I opposite the name
of such PM Securityholder.
Each such notice, demand or other communication hereunder shall be
effective upon receipt in the case of physical delivery or overnight courier,
upon confirmation of receipt by or on behalf of the addressee in the case of
transmission by facsimile or electronic mail if received prior to 5:00 p.m. New
York City time, and, if received after 5:00 p.m., on the date after such
confirmation, and three (3) days after deposit in the U.S. mails in the case of
mailing.
18. Entire Agreement; No Third Party Beneficiaries.
This Agreement and the other writings referred to herein or
delivered pursuant hereto contain the sole and entire agreement among the
Corporation and the PM Securityholders with respect to the subject matter hereof
and thereof and shall supersede all prior or contemporaneous arrangements or
understandings (whether written or oral) with respect hereto or thereto and,
except for the provisions of Section 6, are not intended to confer upon any
Persons other than the parties to this Agreement any rights or remedies
hereunder.
19. Amendment.
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision be waived, except pursuant to a writing signed by
(i) the Corporation, and (ii) a Majority of the PM Securityholders; provided,
however, that no such written consent shall be required for the amendment of
Schedule I solely to reflect the name and address of any new PM Securityholder
who has become a party to this Agreement in accordance with the terms and
conditions hereof. No waiver by any party hereto of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any
20
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence. Each holder of any Restricted Securities
outstanding at or after the time of any modification or amendment of, or waiver
of any provisions of this Agreement, shall be bound by any consent authorized by
this Section 19, whether or not such Restricted Securities shall have been
marked to indicate such consent.
20. Severability.
It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible under
the Laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
21. Counterparts; Facsimile Signatures.
This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. This Agreement and
each other agreement or instrument entered into in connection herewith or
contemplated hereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine, shall be treated in all manner
and respects as an original agreement or instrument and shall be considered to
have the same binding legal effect as if it were the original signed version
thereof delivered in person. At the request of any party hereto or to any such
agreement or instrument, each other party hereto or thereto shall reexecute
original forms thereof and deliver them to all other parties.
22. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
23. Enforcement.
The parties hereto agree that irreparable damage would occur and
that the parties would not have any adequate remedy at law in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
21
Agreement in any federal court located in the Borough of Manhattan, City of New
York or any New York state court located in the Borough of Manhattan, City of
New York, this being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any federal court located in the
Borough of Manhattan, City of New York or any New York state court located in
the Borough of Manhattan, City of New York in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding which is brought in any
such court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum and (c) agrees that it will
not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a federal court located
in the Borough of Manhattan, City of New York or any New York state court
located in the Borough of Manhattan, City of New York. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 17 shall be deemed effective service of process on such party.
24. Interpretation; Construction.
The headings contained in this Agreement and in the table of
contents to this Agreement are for convenience of reference only and shall not
govern or affect in any way the meaning or interpretation of any of the terms or
provisions of this Agreement. Except when the context requires otherwise, any
reference in this Agreement to any Section, clause or Schedule shall be to the
Sections and clauses of, and Schedules to, this Agreement. The words "include,"
"includes" and "including" are deemed to be followed by the phrase "without
limitation." Any reference to the masculine, feminine or neuter gender shall
include such other genders and any reference to the singular or plural shall
include the other, in each case unless the context otherwise requires. Schedule
I annexed hereto is hereby incorporated in and made a part of this Agreement as
if set forth in full herein. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement has
been chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
25. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS, HIS OR HER
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE
SUBJECT MATTER HEREOF.
26. Attorney's Fees.
If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover such reasonable attorneys fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled, as may be ordered in connection with such proceeding.
* * * * *
23
IN WITNESS WHEREOF, the parties hereto have duly executed this
Registration Rights Agreement as of the date first written above.
OPUS360 CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
IN WITNESS WHEREOF, the parties hereto have duly executed this
Registration Rights Agreement as of the date first written above.
[PM SECURITYHOLDER]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Kilkowski
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
Title: Partner
The ▇.▇. ▇▇▇▇ ▇▇▇▇ Trust dated 9/22/1993
By: /s/ Hutt ▇▇▇▇
-----------------------------
Hutt ▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee of ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1991 Trust U/T/A dated July, 10, 1991
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee of Alexander ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1991 Trust U/T/A dated July, 10, 1991
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Troop ▇▇▇▇▇▇▇ Pasich Reddick & ▇▇▇▇▇, LLP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Artemis Management Co., LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BridgeGate, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Christian & Timber
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP/CFO
Avalon Technology, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Editor
DynaFund, L.P.
By: /s/ ▇▇▇▇▇ ▇.▇. Ko
-----------------------------
Its General Partner
By: /s/ DynaFund L.P.
-----------------------------
Name: ▇▇▇▇▇ ▇.▇. Ko
Title: General Partner
DynaFund, International, L.P.
By: /s/ ▇▇▇▇▇ ▇.▇. Ko
-----------------------------
Its General Partner
By: /s/ DynaFund, International, L.P.
-----------------------------
Name: ▇▇▇▇▇ ▇.▇. Ko
Title: General Partner
Windward Ventures, L.P.
By: /s/ Windward Ventures Management, L.P.
-----------------------------
Its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustees of the ▇▇▇▇▇▇▇ Family Trust U/D/T
dated 7-10-91 as the Separate Property of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-Trustee
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustees of the ▇▇▇▇▇▇▇ Family Trust U/D/T
dated 7-10-91
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-Trustee
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇
SILICON VALLEY BANK
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
IMPERIAL BANCORP
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP, General Counsel & Secretary
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ Plug
-----------------------------
▇▇▇▇▇ Plug
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇
THE ▇▇▇▇ ▇▇▇ GROUP
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Partner
TWO ROADS PROFESSIONAL
RESOURCES, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VP/Co-Founder
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
IT SERVICES ADVISORY, LLC
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO