EXHIBIT 10.31
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of March 13, 2000 among ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation (the "Company"), and EMAX Solution Providers, Inc., a Delaware
corporation ("EMAX"), in favor of the former stockholders of EMAX who executed
the Stockholder Certificate pursuant to the Merger Agreement (collectively the
"Stockholders.")
WHEREAS, concurrently with the execution of this Agreement, the Company and
EMAX are parties to an Agreement and Plan of Merger and Reorganization (the
"Merger Agreement") which provides for the merger of SciQuest Acquisition, Inc.,
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a Delaware corporation and wholly-owned subsidiary of the Company, with and into
EMAX (the "Merger"), on the terms and subject to the conditions set forth
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therein. By virtue of the Merger, the outstanding shares of capital stock of
EMAX will be converted into the right to receive shares of Common Stock of the
Company on the basis described in the Merger Agreement. Unless otherwise
indicated, capitalized terms not defined herein have the meanings set forth in
the Merger Agreement.
WHEREAS, the Company has not filed a registration statement to register
any of its shares of common stock in connection with the transactions
contemplated under the Merger Agreement other than the Additional Option Shares.
WHEREAS, pursuant to Section [___] of the Merger Agreement, it is a
condition to the consummation of the Merger that the Company provides certain
registration rights with respect to the Common Stock upon the terms and subject
to the conditions set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, in addition to the
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terms defined above, the following terms shall have the following respective
meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $0.001 par value, of the
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Company, constituted as of the date of this Agreement.
"Holders" shall mean the Stockholders and any other person holding
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Registrable Securities to whom these registration rights have been transferred
pursuant to Section 10 hereof.
"Public Offering" shall mean the effectiveness of the filing of a
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registration statement under the Securities Act that covers the offer and sale
by the Company to the public of Common Stock.
"Other Stockholders" shall mean persons other than Holders who, by virtue
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of agreements with the Company, are entitled to include their securities in a
registration effected pursuant to this Agreement.
The terms "register," "registered" and "registration" refer to the
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effectiveness of a registration statement prepared and filed in compliance with
the Securities Act.
"Registrable Securities" as of any particular time shall mean the Common
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Stock issued to the Stockholders pursuant to the Merger Agreement, including
those held in the Escrow Account; provided, however, that Registrable Securities
shall only be treated as Registrable Securities if and so long as, they have not
been (i) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction or (ii) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof, so that all transfer restrictions and
restrictive legends with respect thereto are removed upon the consummation of
such sale.
"Registration Expenses" shall mean all expenses incurred by the Company in
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complying with Sections 2, 3 and 4 hereof, including, without limitation, all
registration and filing fees; printing expenses; fees and disbursements of
counsel for the Company; reasonable fees and expenses of a single counsel for
the selling Holders; state "blue sky" fees and expenses; and accountants'
expenses, including without limitation any special audits incident to or
required by any such registration; but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company, and
excluding also any additional disbursements of counsel for the selling Holders,
which shall be paid by such selling Holders.
"Securities Act" shall mean the federal Securities Act of 1933, as amended,
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or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at any particular time.
"Securities Exchange Act" shall mean the federal Securities Exchange Act of
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1934, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at any
particular time.
"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and transfer taxes applicable to the sale of Registrable Securities
and any other securities of the Company being sold in the same registration as
the Registrable Securities by Other Stockholders.
2. Requested Registration
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2.1. Demand Registration Rights. Subject to the conditions of
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Section 2.2 below, Holders of the Registrable Securities may make one demand on
the Company to register all or a part of the Registrable Securities (a "Demand
Registration") on Form S-1 or such other form that may be available to the
Company to effect such Demand Registration following 135 days from the Closing
Date.
2.2. Request for Registration. In the event the Company shall
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receive a written request from Holders of at least fifty percent (50%) of the
Registrable Stock (the "Initiating Holders") that the Company effect a Demand
Registration with respect to all or a part of the Registrable Securities, the
Company shall:
(a) promptly give written notice of the proposed registration to
all other Holders; and
(b) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws, and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of such
portion of such Registrable Securities as is specified in such request, together
with such portion of the Registrable Securities of any Holder or Holders joining
in such request as is specified in a written request given within twenty (20)
days after receipt of such written notice from the Company; provided that the
Company shall not be obligated to take any action to effect any such
registration pursuant to this Section 2:
(A) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) during the period following a Public Offering that is
contemplated by Section 11 hereof, provided that the "market stand-off" effected
by any such extension is applicable against the persons described in Section
11(ii);
(C) if such registration would exceed the number of
registrations specified for the Holders in Section 2. 1.
In the event the Company is not obligated to effect any requested
registration by virtue of the foregoing clauses (A) through (C) and does not
effect such requested registration, such request shall not be deemed to be a
demand for registration for purposes of Section 2.1. Subject to the foregoing
clauses (A) through (C), the Company shall file a registration statement
covering the Registrable Securities so requested to be registered as soon as
practicable after receipt of the request of the Initiating Holders; provided,
however, that if the Company shall furnish to the Initiating Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that in the good-faith judgment of the Board of Directors of the Company
it would be seriously detrimental to the Company and its Stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for sixty (60) days after receipt of the request of the Initiating
Holders, provided that the Company shall not exercise its right to
defer filing of such registration statement for more than an aggregate of one
hundred twenty (120) days in any 12-month period.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2.3 below, include securities
offered by the Company for its own account and/or other securities of the
Company that are held by Other Stockholders.
2.3. Underwriters. If the Initiating Holders intend to distribute the
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Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2.1 and the Company shall include such information in the written notice
referred to in Section 2.2(a) hereof. The right of any Holder to registration
pursuant to this Section 2 shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed by the Initiating Holders
and such Holder) to the extent provided herein.
If the Company shall request inclusion in any registration pursuant to
Section 2 of securities being sold for its own account, or if Other Stockholders
shall request inclusion in any registration pursuant hereto, then, subject to
the last sentence of this Section 2.3 with respect to the Company's request, the
Initiating Holders shall, on behalf of all Holders, offer to include such
securities in the underwriting and may condition such offer on their acceptance
of the further applicable provisions of this Agreement. The Company shall
(together with all Holders and Other Stockholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form and containing customary terms reasonably acceptable to the
Initiating Holders, with the representative of the underwriter or underwriters
selected for such underwriting by the Company and reasonably acceptable to the
Initiating Holders; provided, however, that if the Company has not selected an
underwriter reasonably acceptable to the Initiating Holders within thirty (30)
days after the Company's receipt of the request for registration from the
Initiating Holders, then the Initiating Holders may select an underwriter
reasonably acceptable to the Company in connection with such registration.
Notwithstanding any other provision of this Section 2, if the underwriter
representative advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, the securities
of the Company held by Other Stockholders shall first be excluded from such
registration to the extent so required by such limitation, and, to the extent
additional shares need to be excluded in order to conform to such limitation,
the securities requested by the Company to be included, if any, shall next be
excluded, and, finally, to the extent additional shares need to be excluded,
Registrable Securities requested to be included shall be excluded from such
registration to the extent so required, reduced on a pro rata basis in
proportion to the number of shares of Registrable Securities owned by them. The
Company shall advise all holders of securities requesting registration as to the
number of shares of securities that may be included in the registration and
underwriting as allocated in the foregoing manner. If any Other Stockholder or
Holder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the
underwriter and the Initiating Holders. The securities so withdrawn shall also
be withdrawn from registration. The Company may include its securities for its
own account in such underwritten registration if the underwriter so agrees and
if the number of Registrable Securities and other securities of the Holders that
would otherwise have been included in such registration and underwriting will
not be limited thereby. If all of the shares requested to be included by the
Holders in such underwritten offering have not been included, than Holder shall
not be deemed to have exercised its demand registration rights.
2.4. Deferral of Registration. If the Company shall furnish to the
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Initiating Holders a certificate signed by its President or Chief Executive
Officer stating that, in the good faith judgment of the Company's Board, it
would require the disclosure of material information that would have a Material
Adverse Effect on the Company and its shareholders for such registration to be
effected at such time, the Company shall have the right to defer the filing of
the registration statement for a period of not more than sixty (60) days after
the receipt of the request of the Holders under this Section 2, except that the
Company shall not utilize this right for more than an aggregate of one hundred
twenty (120) days in any 12-month period.
3. Company Registration.
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3.1. Piggyback Registration. If the Company shall propose to register
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any of its securities in connection with the public offering of such securities
solely for cash on a form that would permit the registration of the Registrable
Securities any time following three (3) months from the Closing Date, the
Company shall promptly give to each Holder written notice of such registration
(a "Piggyback Registration"), which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws; and include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made by any Holder or
Holders within fifteen (15) days after receipt of such written notice from the
Company, subject to the underwriter limitations, if any, described in Section
3.3 hereof. The Company shall have the right to withdraw or cease to prepare or
file any registration statement for any offering referred to in this Section 3.1
without any obligation or liability to any Holder.
3.2. Number of Piggyback Registrations. Subject to the underwriter
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limitations, if any, described in Section 3.3 below, each Holder shall be
entitled to have its Registrable Securities included in an unlimited number of
Piggyback Registrations pursuant to this Section 3.
3.3. Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3.1 hereof. In such event the right of any Holder to
registration pursuant to Section 3.1 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and Other Stockholders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for underwriting by the
Company. Notwithstanding any other provision of this Section 3 (but subject to
the special exception described in Section 3.2 above), if the underwriter
reasonably determines that marketing factors require a limitation on the number
of shares to be underwritten, the number of shares that may be included in the
registration shall first be allocated to the Company, then allocated pro rata
among the holders of Registrable Securities and Other Stockholders requesting
registration in proportion (as nearly as possible) to the respective amounts of
Registrable Securities and other securities that such Holders and Other
Stockholders had requested to be included in such registration. The Company
shall advise all holders of securities requesting registration as to the number
of shares or securities that may be included in the registration and
underwriting as allocated in the foregoing manner. No such reduction shall be
made with respect to securities offered by the Company for its own account. If
any Holder or Other Shareholder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall also be withdrawn from such
registration.
4. Form S-3 Registration. If, at a time when Form S-3 is available for
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the registration of Registrable Securities and the Company is eligible to use
Form S-3 for such registration, the Company shall receive from the Holders of
Registrable Securities a written request that the Company effect a registration
on Form S-3, as a shelf registration or otherwise, of any such Holder's
Registrable Securities, the Company will promptly give written notice of the
proposed registration to all other Holders and, as soon as practicable, effect
such registration and all such related qualifications and compliances as may be
reasonably requested and as would permit or facilitate the sale and distribution
of all Registered Securities as are specified in such request and any written
requests of other Holders given within 20 days after receipt of such notice. The
Company shall have no obligation to register more than fifty percent (50%) of
Registrable Securities on Form S-3 held by each Holder. The Company shall have
no obligation to effect a registration requested by a holder of Registrable
Securities under this Section 4 unless the aggregate offering price of the
securities requested to be sold pursuant to such registration is, in the good
faith judgment of the Company, expected to be equal to or greater than $
2,000,000.
5. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to
Sections 2 and 3 of this Agreement and the first two (2) registrations pursuant
to Section 4 of this Agreement shall be borne by the Company; and all Selling
Expenses shall be borne by the Holders and the Other Stockholders of the
securities so registered pro rata on the basis of the number of their shares so
registered; provided, however, that if, as a result of the withdrawal of a
request for registration by the Initiating Holders pursuant to Section 2 hereof,
the registration statement does not become effective, in which case the Holders
and Other Stockholders requesting registration shall have the option of bearing
such Registration Expenses pro rata on the basis of the number of their shares
so included in the registration request (except for the fees of any counsel for
the Holders, which shall be borne only by the persons whom such counsel
represented, pro rata on the basis of the number of their shares so included in
the registration request); in which case such registration shall not be counted
as a registration pursuant to Section 2.1 hereof, and provided, further, that if
any jurisdiction in which the securities shall be qualified shall require that
expenses incurred in connection with the qualification of the securities in that
jurisdiction be borne by the selling Stockholders, then such expenses shall be
payable by the selling Stockholders pro rata to the extent required by such
jurisdiction.
6. Registration Procedures. In the case of each registration effected by
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the Company pursuant to Section 2 of this Agreement, the Company shall keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense the Company shall use commercially
reasonable efforts to:
6.1. keep such registration effective for a period of one hundred
eighty (180) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs; and
6.2. furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request.
6.3 prepare and file with the Commission as soon as reasonably
practicable a registration statement on any form on which registration is
requested for which the Company then qualifies; provided, however, that before
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filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall (A) provide Holders' counsel and any other Inspector
with an opportunity to participate in the preparation of such registration
statement and each prospectus included therein (and each amendment or supplement
thereto) to be filed with the Commission, which documents shall be subject to
the review of Holders' counsel, and (B) notify Holders' counsel and each seller
of Registrable Securities pursuant to such registration statement of any stop
order issued or threatened by the Commission and take all reasonable action
required to prevent the entry of such stop order or to remove it if entered;
6.4 prepare and file with the Commission 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, if
such shares are registered pursuant to Section 2, until the later to occur of
(i) the 120th day following the date on which such registration statement was
declared effective and (ii) the first anniversary of the date hereof, to the
extent permitted under Rule 415 under the Act, or such other period which will
terminate when all Registrable Securities covered by such registration statement
have been sold (but not before the expiration of the ninety (90) day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable), and comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such registration
statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
6.5 as soon as reasonably possible, furnish to each seller of
Registrable Securities, prior to filing a registration statement, copies of such
registration statement as it is proposed to be filed, and thereafter such number
of copies of such registration statement, each amendment and supplement thereto
(in each case including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus), and such other
documents as each such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
6.6 use its commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities may request, and to
continue such qualification in effect in each such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (A) qualify
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generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section, (B) subject itself to taxation in any
such jurisdiction or (C) consent to general service of process in any such
jurisdiction;
6.7 use it commercially reasonable efforts to obtain all other
approvals, covenants, exemptions or authorizations from such governmental
agencies or authorities as may be necessary to enable the sellers of such
Registrable Securities to consummate the disposition of such Registrable
Securities;
6.8 notify each seller of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains 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
light of the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and furnish to
each such seller a reasonable number of copies of a supplement to or amendment
of such prospectus as may be necessary so that, after delivery to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made;
6.9 enter into and perform customary agreements (including an
underwriting agreement in customary form with the underwriter, if any, selected
as
provided in this Agreement) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
6.10 otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission;
6.11 cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed, subject to the satisfaction of the applicable listing requirements of
each such exchange;
6.12 cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD"); and
6.13 use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Registrable Securities contemplated
hereby.
7. Indemnification.
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7.1. With respect to each Holder whose securities have been
registered or qualified pursuant to this Agreement, the Company shall indemnify
such Holder, each of such Holder's officers, directors and partners, and each
person controlling (as defined in the Securities Act) such Holder and each of
such controlling person's officers, directors and partners, and shall also
indemnify each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which such statements
were made, or any violation by the Company of any rule or regulation promulgated
under the Securities Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and shall reimburse each such Holder and each
person controlling such Holder, and each of such controlling person's officers,
directors and partners, each of its officers, directors and partners, each such
underwriter, and each person who controls such underwriter, for any legal and
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon written
information furnished to the Company in an instrument duly executed by the
Holder or underwriter seeking to be indemnified, where such information was
provided specifically for use in such prospectus, offering circular or related
document.
7.2. Each Holder and Other Stockholder shall, if securities held by
him or it are included among the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each person who controls (as defined in the
Securities Act) the Company, and each other such Holder and Other Stockholder
and each of such controlling person's officers, directors and partners, and each
person controlling such Holder or Other Stockholder and each of such controlling
person's officers, directors and partners, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which such statements were made,
and shall reimburse the Company and such Holders, Other Stockholders, directors,
officers, partners, persons, underwriters and control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
or Other Stockholder specifically for use therein; provided, however, that the
obligations of such Holder or Other Stockholder hereunder shall be limited to an
amount equal to the net proceeds to such Holder or Other Stockholder of
securities sold as contemplated herein.
7.3. Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be withheld unreasonably), and the Indemnified Party may participate in such
defense at such Indemnified Party's expense. The failure of any Indemnified
Party to give notice as provided herein shall relieve the Indemnifying Party of
its obligations under this Section 7 only if such failure is prejudicial to the
ability of the Indemnifying Party to defend such action, and such failure shall
in no event relieve the Indemnifying Party of any liability that he or it may
have to any Indemnified Party otherwise than under this Section 7. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement that 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 with respect to such claim or litigation.
8. Information by Holders and Other Stockholders. Each Holder or Other
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Stockholder of securities included in any registration shall furnish in writing
to the Company duly executed by such Holder or Other Stockholder, such
information
regarding such Holder or Other Stockholder and the distribution proposed by such
Holder or Other Stockholder as the Company may request in writing and as shall
be required in connection with any registration, qualification or compliance
referred to in this Agreement, and the Company shall not be required to include
any Holder's or Other Stockholder's securities in any such registration unless
such information shall have been provided.
9. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission that may permit the sale of the
Common Stock to the public without registration, the Company shall:
9.1. make and keep public information available as those terms are
understood and defined in Rule 144 promulgated by the Commission under the
Securities Act ("Rule 144"), at all times following the Public Offering;
9.2. file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Securities Exchange Act; and
9.3. so long as any Holder owns any securities constituting or
representing Registrable Securities, furnish to such Holder forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the Securities
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any such securities without
registration.
10. Transfer of Registration Rights. The rights to cause the Company to
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register securities of the Company under Sections 2, 3 and 4 hereof may be
assigned by any original Holder (a) to an assignee of Registrable Securities
consisting of or derived from conversion of not less than fifty percent (50%) of
the Common Stock originally issued to such transferring Holder, or (b) upon
distribution by the Holder or an assignee described in (a) that is an entity, of
any of the securities described in (a) to the direct or indirect beneficial
owners of the securities of such entity (including direct or indirect general or
limited partners thereof), together with the securities being transferred,
provided that in each case the Company is given written notice, at the time or
within a reasonable time after said transfer, stating the name and address of
said transferee and identifying the securities with respect to which such
registration rights are being assigned. No such assignment shall be effective
unless the transferee shall be required, as a condition to such transfer, to
agree in writing that he or it will receive and hold such securities subject to
the provisions of this Agreement and unless the Company is given written notice
at the time of the assignment or within a reasonable time after such assignment,
stating the name and address of said transferee and identifying the securities
that are being assigned. The above notwithstanding, in the event that a holder
of Registrable Securities transfers its Registrable Securities to an affiliate,
or in the case of
individuals, to any immediate family member or a trust for the benefit of such
individual or immediate family member, the registration rights granted by this
Agreement shall be transferred with such Registrable Securities.
11. "Market Stand-Off" Agreement. If requested by the Company upon the
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recommendation of the Board of Directors of the Company and an underwriter of
Common Stock (or other securities) of the Company, any Holder who includes
Registrable Securities in a Piggyback Registration, shall not sell or otherwise
transfer or dispose of any Common Stock (or other securities) of the Company
held by them during the ninety (90) day period following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that:
(A) such agreement shall apply only with respect to an underwritten
Piggyback Registration; and
(B) other Stockholders selling securities pursuant to such
registration statement and all officers and directors of the Company enter into
similar agreements.
Such agreement shall be in writing in form satisfactory to the Company and
such underwriter. The Company may impose stop-transfer instructions with respect
to the shares (or securities) subject to the foregoing restriction until the end
of said ninety (90) day period.
12. Changes in Common Stock. If, and as often as, there is any change in
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the Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
13. Representations and Warranties of the Company. The Company represents
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and warrants as follows:
(A) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Charter or Bylaws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(B) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (except as enforceability may be
limited or
affected by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws and equitable principles now or hereafter in
effect and affecting the rights and remedies of creditors generally).
14. Termination. Except as set forth below, the Registrable Securities
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shall cease to be Registrable Securities upon the earlier to occur of (i) their
sale pursuant to a registration statement or Rule 144 under the Securities Act,
or (ii) when they are eligible for sale under Rule 144 without holding period or
volume limitations.
17. Entire Agreement. This Agreement constitutes the entire agreement
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among the parties hereto with respect to the matters provided for herein, and it
supersedes all prior oral or written agreements, commitments or understandings
with respect to the matters provided for herein.
18. Miscellaneous.
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(A) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so expressed or
not.
(B) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered in person, mailed by certified or
registered mail, return receipt requested or overnight courier, or sent by
telecopier or telex, addressed as follows:
(i) if to the Company or any other party hereto, at the address
of such party set forth in the Merger Agreement, as appropriate;
(ii) if to any subsequent holder of Registrable Securities, to
it at such address as may have been furnished to the Company in writing by such
holder;
(iii) or, in any case, at such other address or addresses as
shall have been furnished in writing to the Company (in the case of a holder of
Registrable Securities) or to the holders of Registrable Securities (in the case
of the Company) in accordance with the provisions of this paragraph.
(C) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(D) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and Stockholder
Agent.
(E) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(F) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed on the date and year first above written.
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
EMAX SOLUTION PARTNERS, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________