REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement"), is
made and entered into as of the 18th day of January,
2000, by and among CAMBEX CORPORATION, a Massachusetts
corporation (the "Company"), and the Persons listed on
the Purchaser Signature Pages hereto (each of whom is
individually referred to as a "Purchaser" and all of
whom collectively are referred to as the "Purchasers").
Defined terms used and not otherwise defined in this
Agreement shall have the meanings ascribed to them in
the Purchase Agreement (defined below).
BACKGROUND
In connection with the consummation of the transactions
contemplated by that Series 1 Bridge Note Purchase and
Security Agreement (the "Purchase Agreement") of even
date herewith by and among the Company and the
Purchasers, the Company has agreed, upon the terms and
subject to the conditions of the Purchase Agreement, to
issue and sell to the Purchasers from time to time up
to $2,000,000 in principal amount of its Series 1
Convertible Bridge Financing Notes (the "Series 1
Bridge Notes") together with Common Stock Purchase
Warrants (the "Purchaser Warrants"). Attached to the
Series 1 Bridge Notes are Repricing Warrants (the
"Repricing Warrants"). Collectively, the Series 1
Bridge Notes, the Purchaser Warrants, and the Repricing
Warrants are hereinafter collectively referred to as
the "Purchased Securities"). The Series 1 Bridge Notes
are convertible into, and the Purchaser Warrants and
the Repricing Warrants are exercisable for, shares of
the Company's common stock, $.01 par value per share
(the "Common Stock"). The Common Stock issuable upon
conversion of the Series 1 Bridge Notes is hereinafter
referred to as the "Conversion Shares," the Common
Stock issuable upon exercise of the Purchaser Warrants
is hereinafter referred to as the "Purchaser Warrant
Shares," and the Common Stock issuable upon exercise of
the Repricing Warrants is hereinafter called the
"Repricing Warrant Shares." To induce Purchasers to
execute and deliver the Purchase Agreement, the Company
has agreed to file a Registration Statement covering
the Conversion Shares, the Purchaser Warrant Shares,
and the Repricing Warrant Shares, under the Securities
Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute
(collectively, the "1933 Act"), and applicable state
securities laws.
AGREEMENT
For and in consideration of the premises and the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Purchasers
hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following
capitalized terms are used with the meanings
there after ascribed:
(a) "Investor" means any Purchaser and any
transferee or assignee thereof to whom any
Purchaser assigns its rights under this
Agreement and who agrees to become bound by
the provisions of this Agreement in
accordance with Section 9.
(b) "Person" means a corporation, a limited
liability company, an association, a
partnership, an organization, a business, an
individual, a governmental or political
subdivision thereof, or a governmental
agency.
(c) "Register," "registered," and
"registration" refer to a registration
effected by preparing and filing one or more
Registration Statements in compliance with
the 1933 Act and pursuant to Rule 415 under
the 1933 Act or any successor rule providing
for offering securities on a continuous basis
("Rule 415"), and the declaration or ordering
of effectiveness of such Registration
Statement(s) by the United States Securities
and Exchange Commission (the "SEC").
(d) "Registrable Securities" means the
Conversion Shares, the Purchaser Warrant
Shares, the Repricing Warrant Shares, and
shares of Common Stock issuable upon
conversion of Warrant Certificates
("Placement Warrant Shares") issued to the
Placement Agent pursuant to the Warrant
Agreement between the Placement Agent and the
Company, and any shares of capital stock
issued or issuable with respect to the
Purchased Securities, Conversion Shares, the
Purchaser Warrant Shares, Repricing Warrant
Shares, or the Placement Warrant Shares as a
result of any stock split, stock dividend,
recapitalization, exchange, or similar event.
(e) "Registration Statement" means a
registration statement of the Company filed
under the 1933 Act.
Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in
the Purchase Agreement.
Section 2. Registration.
(a) Mandatory Registration. The Company
shall prepare and file with the SEC a
Registration Statement or Registration
Statements (as is necessary) on Form S-3 (or,
if such form is unavailable for such a
registration, on such other form as is
available for such a registration, subject to
the consent of each Purchaser and the
provisions of Section Error! Reference source
not found.(e), which consent will not be
unreasonably withheld), covering the resale
of all of the Registrable Securities, within
ninety (90) days after the first to occur of
(1) the issuance, sale, and delivery of
$2,000,000 in principal amount of, or (2) the
date the Company receives written notice from
Sovereign Capital Advisors, LLC of
termination of further offers of the Series 1
Bridge Notes (the "Filing Deadline"). The
Registration Statement(s) shall state that,
in accordance with Rule 416 promulgated under
the 1933 Act, such Registration Statement(s)
also covers such indeterminate number of
additional shares of Common Stock as may
become issuable (i) upon conversion of the
Series 1 Bridge Notes and exercise of the
Purchaser Warrants to prevent dilution
resulting from stock splits, stock dividends,
or similar transactions, and (ii) by reason
of the Repricing Warrants in accordance with
the terms thereof. Such Registration
Statement shall initially register for resale
1,800,000 shares of the Company's Common
Stock, representing 1,400,000 shares for
Conversion Shares and Repricing Warrant
Shares, 300,000 for Purchaser Warrant Shares,
and 100,000 shares for Placement Warrant
Shares, subject to adjustment as provided in
Section Error! Reference source not found.(b)
hereof, and such registered shares of Common
Stock shall be allocated among the Investors
pro rata based on the total number of
Registrable Securities issued or issuable as
of each date that a Registration Statement,
as amended, relating to the resale of the
Registrable Securities is declared effective
by the SEC. The Company shall use its best
efforts to have the Registration Statement
declared effective by the SEC within one
hundred twenty (120) days after the Filing
Deadline (the "Registration Deadline"). The
Company shall permit the registration
statement to become effective within five (5)
business days after receipt of a "no review"
notice from the SEC. Such Registration
Statement shall be kept current and effective
for a period of twelve (12) months from the
Closing Date.
(b) Underwritten Offering. If any offering
pursuant to a Registration Statement pursuant
to Section Error! Reference source not
found.(a) involves an underwritten offering,
the Purchasers shall have the right to select
one legal counsel and an investment banker or
bankers and manager or managers to administer
their interest in the offering, which
investment banker or bankers or manager or
managers shall be reasonably satisfactory to
the Company.
(c) Piggy-Back Registrations. If at any
time prior to the expiration of the
Registration Period (as hereinafter defined)
the Company proposes to file with the SEC a
Registration Statement relating to an
offering for its own account or the account
of others under the 1933 Act of any of its
securities (other than on Form S-4 or Form S-
8 or their then equivalents relating to
securities to be issued solely in connection
with any acquisition of any entity or
business or equity securities issuable in
connection with stock option or other
employee benefit plans) the Company shall
promptly send to each Investor who is
entitled to registration rights under this
Section Error! Reference source not found.(c)
written notice of the Company's intention to
file a Registration Statement and of such
Investor's rights under this Section Error!
Reference source not found.(c) and, if within
twenty (20) days after receipt of such
notice, such Investor shall so request in
writing, the Company shall include in such
Registration Statement all or any part of the
Registrable Securities such Investor requests
to be registered, subject to the priorities
set forth in Section Error! Reference source
not found.(d) below. No right to
registration of Registrable Securities under
this Section Error! Reference source not
found.(c) shall be construed to limit any
registration required under Section Error!
Reference source not found.(a) hereof. The
obligations of the Company under this Section
Error! Reference source not found.(c) may be
waived by Investors holding a majority of the
Registrable Securities. If an offering in
connection with which an Investor is entitled
to registration under this Section Error!
Reference source not found.(c) is an
underwritten offering, then each Investor
whose Registrable Securities are included in
such Registration Statement shall, unless
otherwise agreed by the Company, offer and
sell such Registrable Securities in an
underwritten offering using the same
underwriter or underwriters and, subject to
the provisions of this Agreement, on the same
terms and conditions as other shares of
Common Stock included in such underwritten
offering.
(d) Priority in Piggy-Back Registration
Rights in connection with Registrations for
Company Account. If the registration
referred to in Section Error! Reference
source not found.(c) is to be an underwritten
public offering for the account of the
Company and the managing underwriter(s)
advise the Company in writing, that in their
reasonable good faith opinion, marketing or
other factors dictate that a limitation on
the number of shares of Common Stock which
may be included in the Registration Statement
is necessary to facilitate and not adversely
affect the proposed offering, then the
Company shall include in such registration:
(i) first, all securities the Company
proposes to sell for its own account, (ii)
second, up to the full number of securities
proposed to be registered for the account of
the holders of securities entitled to
inclusion of their securities in the
Registration Statement by reason of demand
registration rights, and (iii) third, the
securities requested to be registered by the
Investors and other holders of securities
entitled to participate in the registration,
drawn from them pro rata based on the number
each has requested to be included in such
registration.
(e) Eligibility for Form S-3. The Company
represents, warrants covenants that it has
filed and shall file all reports required to
be filed by the Company with the SEC in a
timely manner so as to obtain and maintain
such eligibility for the use of Form S-3. In
the event that Form S-3 is not available for
sale by the Investors of the Registrable
Securities, then (i) the Company, with the
consent of each Investor pursuant to Section
Error! Reference source not found.(a), shall
register the sale of the Registrable
Securities on another appropriate form, such
as Form SB-2 and (ii) the Company shall
undertake to register the Registrable
Securities on Form S-3 as soon as such form
is available. In the event that Form S-3 is
not available to the Company after the
Closing Date and prior to the Filing
Deadline, then the applicable time period
provided for filing in Section 2(a) above
shall become "sixty (60)"days instead of
"ninety (90)"days.
Section 3. Related Obligations.
Whenever an Investor has requested that any Registrable
Securities be registered pursuant to Section Error!
Reference source not found.(c) hereof, or at such time
as the Company is obligated to file a Registration
Statement with the SEC pursuant to Section Error!
Reference source not found.(a) hereof, the Company will
use its best efforts to effect the registration of the
Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto,
the Company shall have the following obligations:
(a) The Company shall promptly prepare and
file with the SEC a Registration Statement
with respect to the Registrable Securities
(on or prior to the Filing Deadline), for the
registration of Registrable Securities
pursuant to Section Error! Reference source
not found.(a) and use its best efforts to
cause such Registration Statement(s) relating
to Registrable Securities to become effective
as soon as possible after such filing and in
any event by the Registration Date, and keep
the Registration Statement(s) effective
pursuant to Rule 415 at all times until the
later of (i) the date as of which the
Investors may sell all of the Registrable
Securities without restriction pursuant to
Rule 144(k) promulgated under the 1933 Act
(or successor thereto) or (ii) the date on
which (A) the Investors shall have sold all
the Registrable Securities and (B) none of
the Series 1 Bridge Notes are outstanding
(the "Registration Period"), which
Registration Statement(s) (including any
amendments or supplements thereto and
prospectuses contained therein) shall not
contain any 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, in light of
the circumstances in which they were made,
not misleading. In the event that the
Company's Registration Statement is not filed
and declared effective on or before the
Maturity Date, then the Company agrees to pay
to the holder of each Bridge Note a penalty
equal to two percent (2%) of the outstanding
principal amount then due under each such
Bridge Note. In such event, this registration
penalty shall become immediately payable by
the Company without demand at the sole option
of each such Holder, either in cash or by a
number of shares of freely tradable Common
Stock of the Company equal to the outstanding
principal amount then due under each such
Bridge Note divided by the average Closing
Bid Price of the Company's Common Stock for
the five trading days prior to the date such
penalty payments are due. Such registration
penalties are due at the end of each thirty
(30) day period beyond the Maturity Date, pro-
rated for partial months, until the
Registration Statement becomes effective.
(b) The Company shall prepare and file with
the SEC such amendments (including post-
effective amendments) and supplements to the
Registration Statement(s) and the prospectus
(es) used in connection with the Registration
Statement(s), which prospectus (es) are to be
filed pursuant to Rule 424 promulgated under
the 1933 Act, as may be necessary to keep the
Registration Statement(s) effective at all
times during the Registration Period, and,
during such period, comply with the
provisions of the 1933 Act with respect to
the disposition of all Registrable Securities
of the Company covered by the Registration
Statement(s) until such time as all of such
Registrable Securities shall have been
disposed of in accordance with the intended
methods of disposition by the seller or
sellers thereof as set forth in the
Registration Statement(s). In the event the
number of shares available under a
Registration Statement filed pursuant to this
Agreement is insufficient to cover all of the
Registrable Securities, the Company shall
amend the Registration Statement, or file a
new Registration Statement (on the short form
available therefor, if applicable), or both,
so as to cover all of the Registrable
Securities, in each case, as soon as
practicable, but in any event within fifteen
(15) days after the necessity therefor arises
(based on the market price of the Common
Stock and other relevant factors on which the
Company reasonably elects to rely). The
Company shall use its best efforts to cause
such amendment and/or new Registration
Statement to become effective as soon as
practicable following the filing thereof.
For purposes of the foregoing provision, the
number of shares available under a
Registration Statement shall be deemed
"insufficient to cover all of the Registrable
Securities" if at any time the number of
Registrable Securities issued or issuable
upon conversion of the Series 1 Bridge Notes
together with the number of Registrable
Securities issued or issuable upon exercise
of the Purchaser Warrants and the Repricing
Warrants is greater than the quotient
determined by dividing (i) the number of
shares of Common Stock available for resale
under such Registration Statement by (ii)
{1.0}. For purposes of the calculation set
forth in the foregoing sentence, any
restrictions on the convertibility of the
Series 1 Bridge Notes or exercise of the
Purchaser Warrants and the Repricing Warrants
shall be disregarded and such calculation
shall assume that the Series 1 Bridge Notes
are then convertible into shares of Common
Stock at the then prevailing Conversion Price
(as defined in the Series 1 Bridge Notes) and
that the Purchaser Warrants and the Repricing
Warrants are exercised at the then current
exercise price.
(c) The Company shall furnish to each
Investor whose Registrable Securities are
included in the Registration Statement(s) and
its legal counsel, without charge, (i)
promptly after the same is prepared and filed
with the SEC at least one copy of the
Registration Statement and any amendment
thereto, including financial statements and
schedules, all documents incorporated therein
by reference, and all exhibits, the
prospectus (es) included in such Registration
Statement(s) (including each preliminary
prospectus) and all correspondence by or on
behalf of the Company to the SEC or the staff
of the SEC and all correspondence from the
SEC or the staff of the SEC to the Company or
its representatives, related to such
Registration Statement(s), (ii) upon the
effectiveness of any Registration Statement,
ten (10) copies of the prospectus included in
such Registration Statement and all
amendments and supplements thereto (or such
other number of copies as such Investor may
reasonably request), and (iii) such other
documents, including any preliminary
prospectus, as such Investor may reasonably
request in order to facilitate the
disposition of the Registrable Securities
owned by such Investor.
(d) The Company shall use reasonable efforts
to (i) register and qualify the Registrable
Securities covered by the Registration
Statement(s) under such other securities or
"blue sky" laws of such jurisdictions in the
United States as any Investor reasonably
requests, (ii) prepare and file in those
jurisdictions, such amendments (including
post-effective amendments) and supplements to
such registrations and qualifications as may
be necessary to maintain the effectiveness
thereof during the Registration Period, (iii)
take such other actions as may be necessary
to maintain such registrations and
qualifications in effect at all times during
the Registration Period, and (iv) take all
other actions reasonably necessary or
advisable to qualify the Registrable
Securities for sale in such jurisdictions;
provided however, that the Company shall not
be required in connection therewith or as a
condition thereto to (A) qualify to do
business in any jurisdiction where it would
not otherwise be required to qualify but for
this Section Error! Reference source not
found.(d) hereof, (B) subject itself to
general taxation in any such jurisdiction, or
(C) file a general consent to service of
process in any such jurisdiction. The
Company shall promptly notify each Investor
who holds Registrable Securities of the
receipt by the Company of any notification
with respect to the suspension of the
registration or qualification of any of the
Registrable Securities for sale under the
securities or "blue sky" laws of any
jurisdiction in the United States or its
receipt of actual notice of the initiation or
threatening of any proceeding for such
purpose.
(e) In the event Investors who hold a
majority of the Registrable Securities being
offered in the offering select underwriters
for the offering, the Company shall enter
into and perform its obligations under an
underwriting agreement, in usual and
customary form, including, without
limitation, customary indemnification and
contribution obligations, with the
underwriters of such offering.
(f) As promptly as practicable after
becoming aware of such event, the Company
shall notify each Investor in writing of the
happening of any event, of which the Company
has knowledge, as a result of which, the
prospectus included in a Registration
Statement, as then in effect, includes an
untrue statement of a material fact or
omission to state a material fact required to
be stated therein or necessary to make the
statements therein, in light of the
circumstances under which they were made, not
misleading, and promptly prepare a supplement
or amendment to the Registration Statement to
correct such untrue statement or omission,
and deliver ten (10) copies of such
supplement or amendment to each Investor (or
such other number of copies as such Investor
may reasonably request). The Company shall
also promptly notify each Investor in writing
(i) when a prospectus or any prospectus
supplement or post-effective amendment has
been filed, and when a Registration Statement
or any post-effective amendment has become
effective (notification of such effectiveness
shall be delivered to each Investor by
facsimile on the same day of such
effectiveness and by overnight mail), (ii) of
any request by the SEC for amendments or
supplements to a Registration Statement or
related prospectus or related information,
and (iii) of the Company's reasonable
determination that a post-effective amendment
to a Registration Statement would be
appropriate.
(g) The Company shall use its best efforts
to prevent the issuance of any stop order or
other suspension of effectiveness of a
Registration Statement, or the suspension of
the qualification of any of the Registrable
Securities for sale in any jurisdiction and,
if such an order or suspension is issued, to
obtain the withdrawal of such order or
suspension at the earliest possible moment,
and to notify each Investor who holds
Registrable Securities being sold (and, in
the event of an underwritten offering, the
managing underwriters) of the issuance of
such order and the resolution thereof, or its
receipt of actual notice of the initiation,
or threatened initiation of any proceeding
for such purpose.
(h) The Company shall permit each Investor a
single firm of counsel or such other counsel
as thereafter designated as selling
stockholders' counsel by the Investors who
hold a majority of the Registrable Securities
being sold, to review and comment upon the
Registration Statement(s) and all amendments
and supplements thereto at least seven (7)
days prior to their filing with the SEC, and
not file any document in a form to which such
counsel reasonably objects. The Company
shall not submit a request for acceleration
of the effectiveness of a Registration
Statement(s) or any amendment or supplement
thereto without the prior approval of such
counsel, which consent shall not be
unreasonably withheld.
(i) At the request of the Investors who hold
a majority of the Registrable Securities
being sold, the Company shall furnish, on the
date that Registrable Securities are
delivered to an underwriter, if any, for sale
in connection with the Registration Statement
(i) if required by an underwriter, a letter,
dated such date, from the Company's
independent certified public accountants in
form and substance as is customarily given by
independent certified public accountants to
underwriters in an underwritten public
offering, addressed to the underwriters, and
(ii) an opinion, dated as of such date, of
counsel representing the Company for purposes
of such Registration Statement, in form,
scope, and substance as is customarily given
in an underwritten public offering, addressed
to the underwriters and the Investors.
(j) The Company shall make available for
inspection by (i) any Investor, (ii) any
underwriter participating in any disposition
pursuant to a Registration Statement, (iii)
one firm of attorneys and one firm of
accountants or other agents retained by the
Investors, and (iv) one firm of attorneys
retained by all such underwriters
(collectively, the "Inspectors") all
pertinent financial and other records, and
pertinent corporate documents and properties
of the Company (collectively, the "Records"),
as shall be reasonably deemed necessary by
each Inspector to enable each Inspector to
exercise its due diligence responsibility,
and cause the Company's officers, directors,
and employees to supply all information which
any Inspector may reasonably request for
purposes of such due diligence provided
however, that each Inspector shall hold in
strict confidence and shall not make any
disclosure (except to an Investor) or use of
any Record or other information which the
Company determines in good faith to be
confidential, and of which determination the
Inspectors are so notified, unless (A) the
disclosure of such Records is necessary to
avoid or correct a misstatement or omission
in any Registration Statement or is otherwise
required under the 1933 Act, (B) the release
of such Records is ordered pursuant to a
final, non-appealable subpoena or order from
a court or government body of competent
jurisdiction, or (C) the information in such
Records has been made generally available to
the public other than by disclosure in
violation of this or any other agreement.
Each Investor agrees that it shall, upon
learning that disclosure of such Records is
sought in or by a court or governmental body
of competent jurisdiction or through other
means, give prompt notice to the Company and
allow the Company, at its expense, to
undertake appropriate action to prevent
disclosure of, or to obtain a protective
order for, the Records deemed confidential.
(k) The Company shall hold in confidence and
not make any disclosure of information
concerning an Investor provided to the
Company unless (i) disclosure of such
information is necessary to comply with
federal or state securities laws, (ii) the
disclosure of such information is necessary
to avoid or correct a misstatement or
omission in any Registration Statement, (iii)
the release of such information is ordered
pursuant to a subpoena or other final, non-
appealable order from a court or governmental
body of competent jurisdiction, or (iv) such
information has been made generally available
to the public other than by disclosure in
violation of this or any other agreement.
The Company agrees that it shall, upon
learning that disclosure of such information
concerning an Investor is sought in or by a
court or governmental body of competent
jurisdiction or through other means, give
prompt written notice to such Investor and
allow such Investor, at the Investor's
expense, to undertake appropriate action to
prevent disclosure of, or to obtain a
protective order for, such information.
(l) The Company shall use its best efforts
either to (i) cause all the Registrable
Securities covered by a Registration
Statement to be listed on each national
securities exchange on which securities of
the same class or series issued by the
Company are then listed, if any, if the
listing of such Registrable Securities is
then permitted under the rules of such
exchange, (ii) to secure designation and
quotation of all the Registrable Securities
covered by the Registration Statement on the
NASDAQ National or Small Cap Market, (iii)
if, despite the Company's best efforts to
satisfy the preceding clause (i) or (ii), the
Company is unsuccessful in satisfying the
preceding clause (i) or (ii) to secure the
inclusion for quotation on the NASDAQ
National or Small Cap Market for such
Registrable Securities or, (iv) if, despite
the Company's best efforts to satisfy the
preceding clause (iii), the Company is
unsuccessful in satisfying the preceding
clause (iii), to secure the inclusion for
quotation on the over-the-counter market for
such Registrable Securities, and, without
limiting the generality of the foregoing, in
the case of clause (iii) or (iv), to arrange
for at least two market makers to register
with the National Association of Securities
Dealers, Inc. ("NASD") as such with respect
to such Registrable Securities. The Company
shall pay all fees and expenses in connection
with satisfying its obligation under this
Section Error! Reference source not
found.(1).
(m) The Company shall cooperate with the
Investors who hold Registrable Securities
being offered and, to the extent applicable,
any managing underwriter or underwriters, to
facilitate the timely preparation and
delivery of certificates (not bearing any
restrictive legend) representing the
Registrable Securities to be offered pursuant
to a Registration Statement and enable such
certificates to be in such denominations or
amounts, as the case may be, as the managing
underwriter or underwriters, if any, or, if
there is no managing underwriter or
underwriters, the Investors may reasonably
request and registered in such names as the
managing underwriter or underwriters, if any,
or the Investors may request. Not later than
the date on which any Registration Statement
registering the resale of Registrable
Securities is declared effective, the Company
shall deliver to its transfer agent
instructions, accompanied by any reasonably
required opinion of counsel, that permit
sales of unlegended securities in a timely
fashion that complies with then mandated
securities settlement procedures for regular
way market transactions.
(n) The Company shall take all other
reasonable actions necessary to expedite and
facilitate disposition by the Investors of
Registrable Securities pursuant to a
Registration Statement.
(o) The Company shall provide a transfer
agent and registrar of all such Registrable
Securities not later than the effective date
of such Registration Statement.
(p) If requested by the managing
underwriters or an Investor, the Company
shall immediately incorporate in a prospectus
supplement or post-effective amendment such
information as the managing underwriters and
the Investors agree should be included
therein relating to the sale and distribution
of Registrable Securities, including, without
limitation, information with respect to the
number of Registrable Securities being sold
to such underwriters, the purchase price
being paid therefor by such underwriters, and
with respect to any other terms of the
underwritten (or best efforts underwritten)
offering of the Registrable Securities to be
sold in such offering; make all required
filings of such prospectus supplement or post-
effective amendment as soon as notified of
the matters to be incorporated in such
prospectus supplement or post-effective
amendment; and supplement or make amendments
to any Registration Statement if requested by
a shareholder or any underwriter of such
Registrable Securities.
(q) The Company shall use its best efforts
to cause the Registrable Securities covered
by the applicable Registration Statement to
be registered with or approved by such other
governmental agencies or authorities as may
be necessary to consummate the disposition of
such Registrable Securities.
(r) The Company shall otherwise use its best
efforts to comply with all applicable rules
and regulations of the SEC in connection with
any registration hereunder.
Section 4. Obligations of the Investors.
(a) At least seven (7) days prior to the
first anticipated filing date of the
Registration Statement, the Company shall
notify each Investor in writing of the
information the Company requires from each
such Investor if such Investor elects to have
any of such Investor's Registrable Securities
included in the Registration Statement. It
shall be a condition precedent to the
obligations of the Company to complete the
registration pursuant to this Agreement with
respect to the Registrable Securities of a
particular Investor that such Investor shall
furnish to the Company such information
regarding itself, the Registrable Securities
held by it, and the intended method of
disposition of the Registrable Securities
held by it as shall be reasonably required to
effect the registration of such Registrable
Securities, and shall execute such documents
in connection with such registration as the
Company may reasonably request.
(b) Each Investor by such Investor's
acceptance of the Registrable Securities
agrees to cooperate with the Company as
reasonably requested by the Company in
connection with the preparation and filing of
the Registration Statement(s) hereunder,
unless such Investor has notified the Company
in writing of such Investor's election to
exclude all of such Investor's Registrable
Securities from the Registration Statement.
(c) In the event Investors holding a
majority of the Registrable Securities being
registered determine to engage the services
of an underwriter, each Investor agrees to
enter into and perform such Investor's
obligations under an underwriting agreement,
in usual and customary form, including,
without limitation, customary indemnification
and contribution obligations, with the
managing underwriter of such offering and
take such other actions as are reasonably
required in order to expedite or facilitate
the disposition of the Registrable
Securities, unless such Investor notifies the
Company in writing of such Investor's
election to exclude all of such Investor's
Registrable Securities from the Registration
Statement(s).
(d) Each Investor agrees that, upon receipt
of any notice from the Company of the
happening of any event of the kind described
in Section Error! Reference source not
found.(g) or the first sentence of Error!
Reference source not found.(f), such Investor
will immediately discontinue disposition of
Registrable Securities pursuant to the
Registration Statement(s) covering such
Registrable Securities until such Investor's
receipt of the copies of the supplemented or
amended prospectus contemplated by Section
Error! Reference source not found.(g) or the
first sentence of Error! Reference source not
found.(f) and, if so directed by the Company,
such Investor shall deliver to the Company
(at the expense of the Company) or destroy
all copies in such Investor's possession, of
the prospectus covering such Registrable
Securities current at the time of receipt of
such notice.
(e) No Investor may participate in any
underwritten registration hereunder unless
such Investor (i) agrees to sell such
Investor's Registrable Securities on the
basis provided in any underwriting
arrangements approved by the Investors
entitled hereunder to approve such
arrangements, (ii) completes and executes all
questionnaires, powers of attorney,
indemnities, underwriting agreements, and
other documents reasonably required under the
terms of such underwriting arrangements, and
(iii) agrees to pay its pro rata share of all
underwriting discounts and commissions.
Section 5. Expenses of Registration.
All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with
registrations, filings, or qualifications pursuant to
Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers
and printing fees, accounting fees, and fees and
disbursements of counsel for the Company and fees and
disbursements of one counsel for the Investors, shall
be borne by the Company.
Section 6. Indemnification.
In the event any Registrable Securities are included in
a Registration Statement under this Agreement:
(a) To the fullest extent permitted by law,
the Company will, and hereby does, indemnify,
hold harmless, and defend each Investor who
holds such Registrable Securities, the
directors, officers, partners, employees,
agents, and each Person, if any, who controls
any Investor within the meaning of the 1933
Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and any
underwriter (as defined in the 1933 Act) for
the Investors, and the directors and officers
of, and each Person, if any, who controls,
any such underwriter within the meaning of
the 1933 Act or the 1934 Act (each, an
"Indemnified Person"), against any losses,
claims, damages, liabilities, judgments,
fines, penalties, charges, costs, attorneys'
fees, amounts paid in settlement or expenses,
joint or several, (collectively, "Claims")
incurred in investigating, preparing, or
defending any action, claim, suit, inquiry,
proceeding, investigation, or appeal taken
from the foregoing by or before any court or
governmental, administrative, or other
regulatory agency, body or the SEC, whether
pending or threatened, whether or not an
indemnified party is or may be a party
thereto ("Indemnified Damages"), to which any
of them may become subject insofar as such
Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any
untrue statement or alleged untrue statement
of a material fact in a Registration
Statement or any post-effective amendment
thereto or in any filing made in connection
with the qualification of the offering under
the securities or other "blue sky" laws of
any jurisdiction in which Registrable
Securities are offered ("Blue Sky Filing"),
or the omission or alleged omission to state
a material fact required to be stated therein
or necessary to make the statements therein,
in light of the circumstances under which the
statements therein were made, not misleading,
(ii) any untrue statement or alleged untrue
statement of a material fact contained in any
preliminary prospectus if used prior to the
effective date of such Registration
Statement, or contained in the final
prospectus (as amended or supplemented, if
the Company files any amendment thereof or
supplement thereto with the SEC) or the
omission or alleged omission to state therein
any material fact necessary to make the
statements made therein, in light of the
circumstances under which the statements
therein were made, not misleading, or, (iii)
any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any
other law, including, without limitation, any
state securities law, or any rule or
regulation thereunder relating to the offer
or sale of the Registrable Securities
pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through
(iii) being, collectively, "Violations").
Subject to the restrictions set forth in
Section Error! Reference source not found.(d)
with respect to the number of legal counsel,
the Company shall reimburse the Investors and
each such underwriter or controlling person,
promptly as such expenses are incurred and
are due and payable, for any legal fees or
other reasonable expenses incurred by them in
connection with investigating or defending
any such Claim. Notwithstanding anything to
the contrary contained herein, the
indemnification agreement contained in this
Section Error! Reference source not
found.(a): (i) shall not apply to a Claim
arising out of or based upon a Violation
which occurs in reliance upon and in
conformity with information furnished in
writing to the Company by any Indemnified
Person or underwriter for such Indemnified
Person expressly for use in connection with
the preparation of the Registration Statement
or any such amendment thereof or supplement
thereto, if such prospectus was timely made
available by the Company pursuant to Section
Error! Reference source not found.(c); (ii)
with respect to any preliminary prospectus,
shall not inure to the benefit of any such
person from whom the person asserting any
such Claim purchased the Registrable
Securities that are the subject thereof (or
to the benefit of any person controlling such
person) if the untrue statement or mission of
material fact contained in the preliminary
prospectus was corrected in the prospectus,
as then amended or supplemented, if such
prospectus was timely made available by the
Company pursuant to Section Error! Reference
source not found.(c), and the Indemnified
Person was promptly advised in writing not to
use the incorrect prospectus prior to the use
giving rise to a violation and such
Indemnified Person, notwithstanding such
advice, used (iii) shall not be available to
the extent such Claim is based on a failure
of the Investor to deliver or to cause to be
delivered the prospectus made available by
the Company, and (iv) shall not apply to
amounts paid in settlement of any Claim if
such settlement is effected without the prior
written consent of the Company, which consent
shall not be unreasonably withheld. Such
indemnity shall remain in full force and
effect regardless of any investigation made
by or on behalf of the Indemnified Person and
shall survive the transfer of the Registrable
Securities by the Investors pursuant to
Section 9.
(b) In connection with any Registration
Statement in which an Investor is
participating, each such Investor agrees to
severally and not jointly indemnify, hold
harmless and defend, to the same extent and
in the same manner as is set forth in Section
Error! Reference source not found.(a), the
Company, each of its directors, each of its
officers who signs the Registration
Statement, each Person, if any, who controls
the Company within the meaning of the 1933
Act or the 1934 Act (collectively and
together with an Indemnified Person, an
"Indemnified Party"), against any Claim or
Indemnified Damages to which any of them may
become subject, under the 1933 Act, the 1934
Act, or otherwise, insofar as such Claim or
Indemnified Damages arise out of or are based
upon any Violation, in each case to the
extent, and only to the extent, that such
Violation occurs in reliance upon and in
conformity with written information furnished
to the Company by such Investor expressly for
use in connection with such Registration
Statement; and, subject to Section Error!
Reference source not found.(d), such Investor
will reimburse any legal or other expenses
reasonably incurred by them in connection
with investigating or defending any such
Claim; provided however, that the indemnity
agreement contained in this Section Error!
Reference source not found.(b) and Section 7
shall not apply to amounts paid in settlement
of any Claim if such settlement is effected
without the prior written consent of such
Investor, which consent shall not be
unreasonably withheld; provided further
however, that the Investor shall be liable
under this Section Error! Reference source
not found.(b) for only that amount of a Claim
or Indemnified Damages as does not exceed the
net proceeds to such Investor as a result of
the sale of Registrable Securities pursuant
to such Registration Statement. Such
indemnity shall remain in full force and
effect regardless of any investigation made
by or on behalf of such Indemnified Party and
shall survive the transfer of the Registrable
Securities by the Investors pursuant to
Section 9. Notwithstanding anything to the
contrary contained herein, the
indemnification agreement contained in this
Section Error! Reference source not found.(b)
with respect to any preliminary prospectus
shall not inure to the benefit of any
Indemnified Party if the untrue statement or
omission of material fact contained in the
preliminary prospectus was corrected on a
timely basis in the prospectus, as then
amended or supplemented.
(c) The Company shall be entitled to receive
indemnities from underwriters, selling
brokers, dealer managers, and similar
securities industry professionals
participating in any distribution, to the
same extent as provided above, with respect
to information such persons so furnished in
writing expressly for inclusion in the
Registration Statement.
(d) Promptly after receipt by an Indemnified
Person or Indemnified Party under this
Section 6 of notice of the commencement of
any action or proceeding (including any
governmental action or proceeding) involving
a Claim such Indemnified Person or
Indemnified Party shall, if a Claim in
respect thereof is to be made against any
indemnifying party under this Section 6,
deliver to the indemnifying party a written
notice of the commencement thereof and the
indemnifying party shall have the right to
participate in, and, to the extent the
indemnifying party so desires, jointly with
any other indemnifying party similarly
noticed, to assume control of the defense
thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case
may be; provided however, that an Indemnified
Person or Indemnified Party shall have the
right to retain its own counsel with the fees
and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of
counsel retained by the indemnifying party,
the representation by such counsel of the
Indemnified Person or Indemnified Party and
the indemnifying party would be inappropriate
due to actual or potential differing
interests between such Indemnified Person or
Indemnified Party and any other party
represented by such counsel in such
proceeding. The Company shall pay reasonable
fees for only one separate legal counsel for
the Investors, and such legal counsel shall
be selected by the Investors holding a
majority in interest of the Registrable
Securities included in the Registration
Statement to which the Claim relates. The
Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party
in connection with any negotiation or defense
of any such action or claim by the
indemnifying party and shall furnish to the
indemnifying party all information reasonably
available to the Indemnified Party or
Indemnified Person which relates to such
action or claim. The indemnifying party
shall keep the Indemnified Party or
Indemnified Person fully apprised at all
times as to the status of the defense or any
settlement negotiations with respect thereto.
No indemnifying party shall be liable for any
settlement of any action, claim or proceeding
effected without its written consent,
provided however, that the indemnifying party
shall not unreasonably withhold, delay or
condition its consent. No indemnifying party
shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry
of any judgment or enter into any settlement
or other compromise which does not include as
an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified
Party or Indemnified Person of a release from
all liability in respect to such claim or
litigation. Following indemnification as
provided for hereunder, the indemnifying
party shall be subrogated to all rights of
the Indemnified Party or Indemnified Person
with respect to all third parties, firms, or
corporations relating to the matter for which
indemnification has been made. The failure
to deliver written notice to the indemnifying
party within a reasonable time of the
commencement of any such action shall not
relieve such indemnifying party of any
liability to the Indemnified Person or
Indemnified Party under this Section 6,
except to the extent that the indemnifying
party is prejudiced in its ability to defend
such action.
(e) The indemnification required by this
Section 6 shall be made by periodic payments
of the amount thereof during the course of
the investigation or defense, as and when
bills are received or Indemnified Damages are
incurred.
(f) The indemnity agreements contained
herein shall be in addition to (i) any cause
of action or similar right of the Indemnified
Party or Indemnified Person against the
indemnifying party or others, and (ii) any
liabilities the indemnifying party may be
subject to pursuant to the law.
Section 7. Contribution.
To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying
party agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted
by law; provided however, that: (i) no contribution
shall be made under circumstances where the maker would
not have been liable for indemnification under the
fault standards set forth in Section 6; (ii) no seller
of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from
any seller of Registrable Securities who was not guilty
of fraudulent misrepresentation, and (iii) contribution
by any seller of Registrable Securities shall be
limited in amount to the net amount of proceeds
received by such seller from the sale of such
Registrable Securities.
Section 8. Reports Under The 1934 Act.
With a view to making available to the Investors the
benefits of Rule 144 promulgated under the 1933 Act or
any other similar rule or regulation of the SEC that
may at any time permit the investors to sell securities
of the Company to the public without registration
("Rule 144"), the Company agrees to:
(a) Make and keep public information
available, as those terms are understood and
defined in Rule 144;
(b) file with the SEC in a timely manner all
reports and other documents required of the
Company under the 1933 Act and the 1934 Act
so long as the Company remains subject to
such requirements (it being understood that
nothing herein shall limit the Company's
obligations under Section 7.3 of the Purchase
Agreement) and the filing of such reports and
other documents is required for the
applicable provisions of Rule 144; and
(c) furnish to each Investor so long as such
Investor owns Registrable Securities,
promptly upon request, (i) a written
statement by the Company that it has complied
with the reporting requirements of Rule 144,
the 1933 Act, and the 1934 Act, (ii) a copy
of the most recent annual or quarterly report
of the Company and such other reports and
documents so filed by the Company, and (iii)
such other information as may be reasonably
requested to permit the investors to sell
such securities pursuant to Rule 144 without
registration.
Section 9. Assignment of Registration Rights.
The rights to have the Company register Registrable
Securities pursuant to this Agreement shall be
automatically assignable by the Investors to any
transferee of all or any portion of Registrable
Securities if: (i) the Investor agrees in writing with
the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (ii)
the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice
of (A) the name and address of such transferee or
assignee, and (B) the securities with respect to which
such registration rights are being transferred or
assigned; (iii) immediately following such transfer or
assignment the further disposition of such securities
by the transferee or assignee is restricted under the
1933 Act and applicable state securities laws; (iv) at
or before the time the Company receives the written
notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained
herein; (v) such transfer shall have been made in
accordance with the applicable requirements of the
Purchase Agreement; (vi) such transferee shall be an
"accredited investor" as that term is defined in Rule
501 of Regulation D promulgated under the 1933 Act; and
(vii) in the event the assignment occurs subsequent to
the date of effectiveness of the Registration Statement
required to be filed pursuant to Section 2(a), the
transferee agrees to pay all reasonable expenses of
amending or supplementing such Registration Statement
to reflect such assignment.
Section 10. Amendment of Registration Rights.
Provisions of this Agreement may be amended and the
observance thereof may be waived (either generally or
in a particular instance and either retroactively or
prospectively), only with the written consent of the
Company and Investors who hold two-thirds of the
Registrable Securities. Any amendment or waiver
effected in accordance with this Section 10 shall be
binding upon each Investor and the Company.
Section 11. Miscellaneous.
(a) A person or entity is deemed to be a
holder of Registrable Securities whenever
such person or entity owns of record such
Registrable Securities. If the Company
receives conflicting instructions, notices,
or elections from two or more persons or
entities with respect to the same Registrable
Securities, the Company shall act upon the
basis of instructions, notice, or election
received from the registered owner of such
Registrable Securities.
(b) Any notices consents, waivers, or other
communications required or permitted to be
given under the terms of this Agreement must
be in writing and will be deemed to have been
delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by
facsimile, provided a copy is mailed by U.S.
certified mail, return receipt requested;
(iii) three (3) days after being sent by U.S.
certified mall, return receipt requested, or
(iv) one (1) day after deposit with a
nationally recognized overnight delivery
service, in each case properly addressed to
the party to receive the same. The addresses
and facsimile numbers for such communications
shall be:
If to the Company:
Cambex Corporation
360 Second Avenue
Waltham, Massachusetts 02451
Attn: Peter Kruy, Executive
Vice President
Telephone: (781) 890-6000
Facsimile: (781) 890-2899
with a copy (which shall not constitute
notice) to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: John E. Beard
Tel: (617) 951-7000
Fax: (617) 951-7050
If to a Purchaser, to its address and
facsimile number on the Schedule of
Purchasers, with copies to such Purchaser's
counsel as set forth on the Schedule of
Purchasers. Each party shall provide five
(5) days prior written notice to the other
party of any change in address or facsimile
number.
(c) Failure of any party to exercise any
right or remedy under this Agreement or
otherwise, delay by a party in exercising
such right or remedy, shall not operate as a
waiver thereof.
(d) This Agreement shall be governed by and
construed in accordance with the laws of the
Commonwealth of Massachusetts, irrespective
of the choice of law provisions thereof. The
parties agree that any action brought by one
party against the other shall be in any
appropriate state court or any federal Court
located in the County where the party against
whom the action is brought is principally
located, and both parties agree that such
courts shall have exclusive jurisdiction of
such case or controversy arising under or in
connection with this Agreement and shall be a
proper forum in which to adjudicate such case
or controversy. The parties consent to the
jurisdiction of such courts.
(e) This Agreement and the Purchase
Agreement constitute the entire agreement
among the parties hereto with respect to the
subject matter hereof and thereof. There are
no restrictions, promises, warranties, or
undertakings, other than those set forth or
referred to herein and therein. This
Agreement supersedes all prior agreements and
understandings among the parties hereto with
respect to the subject matter hereof.
(f) Subject to the requirements of Section
9, this Agreement shall inure to the benefit
and of and be binding upon the permitted
successors and assigns of each of the parties
hereto.
(g) The headings in this Agreement are for
convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in two or
more identical counterparts, each of which
shall be deemed an original but all of which
shall constitute one and the same agreement.
This Agreement, once executed by a party, may
be delivered to the other party hereto by
facsimile transmission of a copy of this
Agreement bearing the signature of the party
so delivering this Agreement.
(i) Each party shall do and perform, or
cause to be done and performed, all such
further acts and things, and shall execute
and deliver all such other agreements,
certificates, instruments, and documents, as
the other party may reasonably request in
order to carry out the intent and accomplish
the purposes of this Agreement and the
consummation of the transactions contemplated
hereby.
COMPANY SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed as of
day and year first above written.
COMPANY:
CAMBEX CORPORATION
By: /s/ Peter Kruy
Peter Kruy,
Executive Vice
President
[Purchasers' Signatures on Following Pages]
PURCHASER SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER: SovCap Equity
Partners, Ltd
By: /s/ Barry W. Herman.
Name: Barry W. Herman
Title: Director
Purchaser Name SovCap Equity Partners, Ltd.
("Purchaser")
Address and Cumberland House
Facsimile Number
#27 Cumberland Street
P.O.Box CB-13016
Nassau, New Providence
The Bahamas
242-356-0037
Principal Amount $1,500,000.00 - Cambex Corporation
of Bridge Notes
Purchased
Purchaser's Legal Balboni Law Group, LLC
Counsel
Address and 3475 Lenox Road, Suite 990
Facsimile Number
Atlanta, GA 30326
404-812-3101
PURCHASER SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER:
By: /s/ Jan Telander
Name: Jan Telander
Title: Director
Purchaser Name Correllus International Ltd, c/o EIG
("Purchaser")
Address and Edf. Marina Marbella, 6B
Facsimile Number
Avenida Sever Olhoa 28, 29600 Marbella,
Spain
Fax: +34-952-858-068
Securities $250,000.00 Series I Bridge Note
Purchased
US$250,000
Purchase Price
Purchaser's Legal Per Ronnstrom
Counsel
Address and Box 7315
Facsimile Number
SE-10390 Stockholm, Sweden
Fax: +46-8-796-8223
PURCHASER SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER:
By: /s/ A. De
Nazareth
Name: A. De Nazareth
Title: Co. Secretary
Purchaser Name Arab Commerce Bank Ltd.
("Purchaser")
Address and P.O. Box 309, Grand Cayman, Cayman Islands
Facsimile Number
London 0171-437-2413
Securities $150,000
Purchased
$150,000
Purchase Price
Purchaser's Legal
Counsel
Address and
Facsimile Number
PURCHASER SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER: SovCap Equity
Partners, Ltd
By: /s/ Barry W. Herman.
Name: Barry W. Herman
Title: President
Purchaser Name SovCap Equity Partners, Ltd.
("Purchaser")
Address and Cumberland House, #27 Cumberland Street
Facsimile Number
P.O.Box N-10818
Nassau, New Providence
The Bahamas
242-356-0037
Purchase Price $100,000.00
Purchaser's Legal
Counsel
Address and
Facsimile Number