REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made
and entered into as of March 24, 2004, by and among Infocrossing, Inc., a
Delaware corporation (the "COMPANY"), and the investors signatory hereto (each a
"PURCHASER" and collectively, the "PURCHASERS").
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of the date hereof among the Company and the Purchasers (the
"PURCHASE AGREEMENT").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the respective meanings set forth in this Section 1:
"EFFECTIVE DATE" means the date that the Registration
Statement filed pursuant to Section 2(a) is first declared effective by the
Commission.
"EFFECTIVENESS DATE" means the earlier of (a) the 90th
calendar day following the Closing Date; provided, that, if the Commission
reviews and has written comments to the filed Registration Statement that would
require the filing of a pre-effective amendment thereto with the Commission,
then the Effectiveness Date under this clause (a) shall be the 120th calendar
day following the Closing Date, and (b) the fifth Trading Day following the date
on which the Company is notified by the Commission that the Registration
Statement will not be reviewed or is no longer subject to further review and
comments. "EFFECTIVENESS DATE" shall also have the meaning specified in Section
2(b).
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FILING DATE" means the 30th calendar day following the
Closing Date. "FILING DATE" shall also have the meaning specified in Section
2(b).
"HOLDER" or "HOLDERS" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 5(c).
"LOSSES" shall have the meaning set forth in Section 5(a).
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in a Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"REGISTRABLE SECURITIES" means the Shares.
"REGISTRATION STATEMENT" means the initial registration
statement required to be filed in accordance with Section 2(a) and any
additional registration statement(s) required to be filed under Section 2(b),
including (in each case) the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statements.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the shares of Common Stock issued or issuable
to the Purchasers pursuant to the Purchase Agreement.
"SPECIAL COUNSEL" means Bryan Cave LLP.
2. Registration.
(a) On or prior to the Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415.
The Registration Statement shall be on Form S-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on another appropriate form for such
purpose) and shall contain (except if otherwise required pursuant to written
comments received from the Commission upon a review of such Registration
Statement) the "Plan of Distribution" attached hereto as Annex A. The Company
shall use its reasonable best efforts to cause the Registration Statement to be
declared effective under the Securities Act as soon as possible but, in any
event, no later than the Effectiveness Date, and shall use its reasonable best
efforts to keep the Registration Statement continuously effective under the
Securities Act (subject to Section 6(d) hereof) until the earlier of (i) the
date that all Registrable Securities covered by such Registration Statement have
been publicly sold, or (ii) the date on which all Registrable Securities covered
by the Registration Statement may be sold without volume restrictions pursuant
to Rule 144(k) and, if requested by an affected Holder or the Company's transfer
agent, as determined by the counsel to the Company pursuant to a written opinion
letter to such effect, addressed and acceptable to the Company's transfer agent
and such affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Shares to be
included in the Registration Statement filed pursuant to Section 2(a), or for
any other reason any Registrable Securities are not permitted by the Commission
to be included in a Registration Statement filed under this Agreement, then the
Company shall use its reasonable best efforts to prepare and file as soon as
possible after the date on which the Commission shall indicate as being the
first date or time that such filing may be made, but in any event by the 30th
calendar day following such date (such date for such Registration is referred to
as such Registration Statement's "Filing Date"), an additional Registration
Statement covering the resale of all Registrable Securities not already covered
by an existing and effective Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company
is not then eligible to register for resale the Registrable Securities on Form
S-3, in which case such registration shall be on another appropriate form for
such purpose). Each such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the "Plan of Distribution"
attached hereto as Annex A. The Company shall use its reasonable best efforts to
cause each such Registration Statement to be declared effective under the
Securities Act as soon as possible but, in any event, no later than the 90th
calendar day following the date on which the Company becomes aware that such
Registration Statement is required under this Agreement (each such 90th calendar
day, the "Effectiveness Date" for such Registration Statement), and shall use
its reasonable best efforts to keep such Registration Statement continuously
effective under the Securities Act during the entire Effectiveness Period,
subject to Section 6(d) hereof.
(c) Notwithstanding anything contained herein to the contrary, including
Sections 3(c) and 6(d) (and without regard to the efforts of the Company to
avoid such occurrence), if: (i) a Registration Statement is not filed on or
prior to its Filing Date (if the Company files a Registration Statement without
affording the Holders the opportunity to review and comment on the same as
required by Section 3(a) hereof, the Company shall not be deemed to have
satisfied this clause (i)), or (ii) a Registration Statement is not declared
effective by the Commission on or prior to the required Effectiveness Date, or
(iii) after the Effective Date, such Registration Statement ceases to be
effective and available to the Holders as to all Registrable Securities to which
it is required to cover (1) for an aggregate of 20 Trading Days (which need not
be consecutive Trading Days) during the two years following the Effective Date,
and (2) for 20 Trading Days in each year thereafter through the expiration of
the Effectiveness Period (it being understood that any unused allocation during
any one year may not be carried forward to subsequent years) (any such failure
or breach being referred to as an "EVENT," and for purposes of clauses (i) or
(ii) the date on which such Event occurs, or for purposes of clause (iii) the
date which an applicable 20 Trading Day-period(s) is exceeded, being referred to
as "EVENT DATE"), then, in addition to any other rights available to the
Holders: (x) on each such Event Date the Company shall pay to each Holder an
amount in cash, as liquidated damages and not as a penalty, equal to .000333333%
of the product of (1) the number of Shares then held by such Holder (2) the
closing sales price of the common Stock on the Event Date (except that, Shares
that maybe resold by the Holder pursuant to Rule 144(k), as evidenced by a legal
opinion provided by Company counsel and paid for by the Company that is
acceptable to the transfer agent for the Company to reissue all of such Holder's
Shares without any restrictive or other legends, shall be excluded for these
purposes) for each day until the applicable Event is cured upon the occurrence
of such filing in the case of clause (i) and upon the effectiveness of the
Registration Statement in the case of clause (ii) and (iii); provided, however,
that the Company shall not in any event be required to pay such liquidated
damages for more than one Event or Event Date at any given time and the
aggregate amount of such liquidated damages shall not exceed 1.0% of the
aggregate unsold portion of the Investment Amount with respect to any calendar
month, which shall be deemed to have 30 days for purposes of this Section 2(c).
If the Company fails to pay any liquidated damages pursuant to this Section in
full within seven days after the date payable, the Company will pay interest
thereon at a rate of 9% per annum (or such lesser maximum amount that is
permitted to be paid by applicable law) to the Holder, accruing daily from the
date such liquidated damages are due until such amounts, plus all such interest
thereon, are paid in full.
3. Registration Procedures
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than three Trading Days prior to the filing of a Registration
Statement or in the case of any related Prospectus or any amendment or
supplement thereto such shorter notice, but in no event less than two Trading
Days prior to the applicable filing, as may be reasonable under the
circumstances, the Company shall furnish to the Holders and the Special Counsel
copies of all such documents (other than those incorporated by reference)
proposed to be filed which documents will be subject to the review of such
Holders and the Special Counsel. The Company shall not file a Registration
Statement or any such Prospectus or any amendments or supplements thereto to
which the Holders of a majority of the Registrable Securities or the Special
Counsel shall reasonably object in good faith.
(b) (i) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable Registrable Securities for
its Effectiveness Period; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably possible to any comments received from the Commission with respect to
each Registration Statement or any amendment thereto and, as promptly as
reasonably possible provide the Holders true and complete copies of all
correspondence from and to the Commission relating to such Registration
Statement that would not result in the disclosure to the Holders of material and
non-public information concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the Registration Statements and the disposition of all Registrable
Securities covered by each Registration Statement.
(c) Notify the Holders and the Special Counsel as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than three Trading Days
prior to such filing) and (if requested by any such Person) confirm such notice
in writing no later than one Trading Day following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to a
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a "review" of such Registration Statement and
whenever the Commission comments in writing on such Registration Statement (the
Company shall provide true and complete copies thereof and all written responses
thereto to each of the Holders and the Special Counsel that pertain to the
Holders as a Selling Stockholder or to the Plan of Distribution, but not
information which the Company believes would constitute material and non-public
information); and (C) with respect to each Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; (v) of the occurrence of any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made in
such Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or the Prospectus,
as the case may be, it will not contain any 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, in light of the circumstances under which they were
made, not misleading and (vi) when the continued effectiveness of a Registration
Statement would require the Company to disclose a material financing,
acquisition or other corporate transaction, which disclosure the Company shall
have determined in good faith is not in the best interests of the Company and
its stockholders at that time.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto and all exhibits to the extent
requested by such Person (including those previously furnished) promptly after
the filing of such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as many copies of each
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request. Subject
to Section 6(d), the Company hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities, use its reasonable
best efforts to register or qualify or cooperate with the selling Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as the selling Holders may reasonably request, to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statements; provided, that
the Company shall not be required to qualify generally to do business or become
subject to general service of process in any jurisdiction where it is not then
so qualified or subject, or to subject the Company to any taxation in any such
jurisdiction where it is not then so subject.
(h) Cooperate with the Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be delivered to a
transferee pursuant to the Registration Statements, which certificates shall be
free, to the extent permitted by the Purchase Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v), as
promptly as reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(j) Each selling Holder agrees to furnish to the Company a selling security
holder questionnaire in the form attached hereto as Annex B (a "SELLING HOLDER
QUESTIONNAIRE").
(k) The Company shall not be required to include the Registrable Securities of
any Holder in the Registration Statement and shall not be required to pay any
liquidated or other damages under Section 2(c) hereof to any Holder who fails to
furnish to the Company (i) a fully completed Selling Holder Questionnaire at
least three (3) Trading Days prior to the Filing Date or (ii) any other
information that the Commission's staff may require as a condition to allowing
such Registration Statement to be declared effective under the Securities Act
(as evidenced by written comments made by the Commission in it is review of such
Registration Statement).
4. Registration Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with any Trading Market on which the Common Stock is then listed for
trading, and (B) in compliance with applicable state securities or Blue Sky
laws), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses if
the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and up to $5,000 of the fees and disbursements of
Special Counsel for each Registration Statement upon presentation of an invoice,
(v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, partners, agents, investment advisors, members and
employees of each of them, each Person who controls any such Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, partners, agents and employees of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and reasonable attorneys'
fees) and expenses (collectively, "LOSSES"), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus or any form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading, except to the
extent, but only to the extent, that (1) such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use therein (it being understood that
the Holder has expressly and in writing approved Annex A hereto for this
purpose) or (2) in the case of an occurrence of an event of the type specified
in Section 3(c)(ii)-(v), the use by such Holder of a Prospectus after the
Company has notified such Holder in writing or promptly confirmed in writing
that in writing that a Suspension Event has occurred and prior to the receipt by
such Holder of an Advice or an amended or supplemented Prospectus, but only if
and to the extent that following the receipt of the Advice or the amended or
supplemented Prospectus the misstatement or omission giving rise to such Loss
would have been corrected. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and
employees of each of them, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon: (x) such Holder's failure
to comply with the prospectus delivery requirements of the Securities Act or (y)
any untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent that, (1) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement (it being understood that the Holder has expressly
and in writing approved Annex A hereto for this purpose), such Prospectus or
such form of Prospectus or in any amendment or supplement thereto or (2) in the
case of an occurrence of a Suspension Event, the use by such Holder of a
Prospectus after the Company has notified such Holder in writing that a
Suspension Event has occurred and prior to the receipt by such Holder of an
Advice or an amended or supplemented Prospectus, but only if and to the extent
that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been
corrected. In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought
or asserted against any Person entitled to indemnity hereunder (an "INDEMNIFIED
PARTY"), such Indemnified Party shall promptly notify the Person from whom
indemnity is sought (the "INDEMNIFYING PARTY") in writing, and the Indemnifying
Party shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of all fees and
expenses incurred in connection with defense thereof; provided, that the failure
of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and
only) to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has expressly
agreed in writing in advance to pay such fees and expenses; (2) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding and to
employ counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that a
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of the
Indemnified Party and such counsel shall be at the expense of the Indemnifying
Party); provided that under no circumstances shall the Indemnifying Party be
responsible for the fees and expenses of more than three separate counsel for
all Indemnified Parties with respect to a Proceeding arising out of the same
claim. The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party consistent with
this Section (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such Proceeding in a manner
not inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Trading Days following written notice thereof and
submission of reasonably satisfactory documentation to the Indemnifying Party
(provided, that the Indemnified Party must expressly undertake in advance in
writing to the Indemnifying Party to reimburse all such fees and expenses to the
extent it is finally judicially determined that such Indemnified Party is not
entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a Holder, of any of
their obligations under this Agreement, each Holder or the Company, as the case
may be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Piggyback on Registrations. Except as and to the extent specified in
Schedule 3.1(v) to the Purchase Agreement, neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant hereto) may
include securities of the Company in the Registration Statement other than the
Registrable Securities, and the Company shall not after the date hereof enter
into any agreement providing any such right to any of its security holders.
Except as and to the extent specified in Schedule 6(b) hereto, the Company has
not previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person which have not been fully
satisfied.
(c) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Securities pursuant to the Registration
Statement. As a condition to the inclusion of its Registrable Securities in a
Registration Statement, a Holder shall (i) at least one Trading Day prior to the
Filing Date or, if earlier (but subject to Section 3(a)) prior to the date of
filing of such Registration Statement, furnish to the Company a completed
Selling Holder Questionnaire and (ii) any other information that the
Commission's staff may require as a condition to allowing such Registration
Statement to be declared effective under the Securities Act (as evidenced by
written comments made by the Commission in it is review of such Registration
Statement); provided, that if any Holder who shall have failed to provide such
information or Selling Holder Questionnaire prior to the filing of a
Registration Statement shall thereafter and prior to such Registration
Statement's Effective Date provide such information or such Selling Holder
Questionnaire, then the Company shall promptly make such amendments to such
Registration Statement as are reasonably necessary to include such Holder's
Registrable Securities therein; provided, that if the Registration Statement has
not been declared effective by the Commission at such time, any period of delay
in becoming effective resulting therefrom shall be deemed to extend the
Effectiveness Date by such period.
(d) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c), such Holder will
forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the "ADVICE") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement (the
period from the date which such Holder receives a Suspension Notice to the date
on which such Holder receives copies of the supplemental or amended Prospectus
being herein called the "SUSPENSION PERIOD").
(e) Piggy-Back Registrations. If at any time during the Effectiveness Period
there is not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity 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, then the Company shall send to each Holder written notice of such
determination and, if within fifteen days after receipt of such notice, any such
Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
(f) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and the Holders of
at least two-thirds of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
certain Holders and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates, provided, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(g) Notices. Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Section prior to 6:30 p.m. (New York City time) on a
Trading Day, (ii) the Trading Day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Agreement later than 6:30 p.m. (New York City time) on any
date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the
Trading Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications
shall be as follows:
If to the Company: Infocrossing, Inc.
2 Christie Heights Street
Leonia, NJ 07605
Attn: Chief Executive Officer
Facsimile No.: (201) 840-7126
With a copy to: Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, NY 10022-4802
Attn: Robert A. Zuccaro, Esq.
Facsimile No.: (212) 751-4864
If to a Purchaser: To the address set forth under such
Purchaser's name on the signature
pages hereto.
If to Special Counsel: Bryan Cave LLP
1290 Avenue of the Americas
New York, NY 10101
Attn.: Eric L. Cohen, Esq.
Fax No.: (212) 541-1432
If to any other Person who is then the registered Holder:
To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of each Holder. The Company may not assign its rights
or obligations hereunder without the prior written consent of each Holder. Each
Holder may assign their respective rights hereunder in the manner and to the
Persons as permitted under the Purchase Agreement.
(i) Execution and Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(j) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
agrees that all Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective Affiliates, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in the City of
New York, Borough of Manhattan (the "NEW YORK COURTS"). Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any Proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of this Agreement,
then the prevailing party in such Proceeding shall be reimbursed by the other
party for its attorney's fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(n) Independent Nature of Purchasers' Obligations and Rights. The obligations of
each Purchaser hereunder are several and not joint with the obligations of any
other Purchaser hereunder, and no Purchaser shall be responsible in any way for
the performance of the obligations of any other Purchaser hereunder. The
decision of each Purchaser to purchase Securities pursuant to the Transaction
Documents has been made independently of any other Purchaser. Nothing contained
herein or in any other agreement or document delivered at any closing, and no
action taken by any Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser acknowledges that no other
Purchaser has acted as agent for such Purchaser in connection with making its
investment hereunder and that no Purchaser will be acting as agent of such
Purchaser in connection with monitoring its investment in the Securities or
enforcing its rights under the Transaction Documents. Each Purchaser shall be
entitled to protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding for such
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
-18-
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
INFOCROSSING, INC.
/S/ ZACH LONSTEIN
--------------------------------------
Name: Zach Lonstein
Title: Chairnam and Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOR PURCHASERS FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Securities Purchase
Agreement as of the date first written above.
Trustman in c/o STI Classic Small Cap
Growth Fund
By:/S/ Mark D. Garfinkel
----------------------------------------
Name: Mark D. Garfinkel
Title: Vice President & Fund Manager
Address for Notice: Trusco Capital
Management
50 Hurt Plaza Suite 1400
Atlanta, GA 30303
Facsimile No.:
Attn:
Trustman in c/o Arthur Vining Davis
Foundation
By:/S/ Mark D. Garfinkel
----------------------------------------
Name: Mark D. Garfinkel
Title: Vice President & Fund Manager
Address for Notice: Trusco Capital
Management
50 Hurt Plaza Suite 1400
Atlanta, GA 30303
Facsimile No.:
Attn:
Trustman in c/i TUA Troyal Brooks
By:/S/ Mark D. Garfinkel
----------------------------------------
Name: Mark D. Garfinkel
Title: Vice President & Fund Manager
Address for Notice: Trusco Capital
Management
50 Hurt Plaza Suite 1400
Atlanta, GA 30303
Facsimile No.:
Attn:
Trustman in c/o TUA Sandra Brooks
By:/S/ Mark D. Garfinkel
----------------------------------------
Name: Mark D. Garfinkel
Title: Vice President & Fund Manager
Address for Notice: Trusco Capital
Management
50 Hurt Plaza Suite 1400
Atlanta, GA 30303
Facsimile No.:
Attn:
SF Capital Partners Ltd.
By:/S/ Brian Stark
----------------------------------------
Name: Brian Stark
Title: Authorized Signatory
Address for Notice: 3600 3 Lake Drive
St. Francis, WI 53235
Facsimile No.: 414-294-7700
Attn: Brian H. Davidson
JLF Partners I, L.P.
By:/S/ Eric Lieberman
----------------------------------------
Name: Eric Lieberman
Title: CFO
Address for Notice: 2775 Via de la Valle
Del Mar, CA 92014
Facsimile No.: 858-259-3449
Attn: Jeff Feinberg
JLF Partners II, L.P.
By:/S/ Eric Lieberman
----------------------------------------
Name: Eric Lieberman
Title: CFO
Address for Notice: 2775 Via de la Valle
Del Mar, CA 92014
Facsimile No.: 858-259-3449
Attn: Jeff Feinberg
JLF Offshore Fund, Ltd
By:/S/ Eric Lieberman
----------------------------------------
Name: Eric Lieberman
Title: CFO
Address for Notice: 2775 Via de la Valle
Del Mar, CA 92014
Facsimile No.: 858-259-3449
Attn: Jeff Feinberg
LBI Group
By:/S/ Fred Steinberg
----------------------------------------
Name: Fred Steinberg
Title: Vice President
Address for Notice: c/o Lehman Brothers, Inc
399 Park Ave. 9th Flr
New York, NY 10022
Facsimile No.: 646-758-1630
Attn: William Yelsits
Janus Investment Fund,
On behalf of its series Janus Venture Fund
By:/S/ William Bales
----------------------------------------
Name: William Bales
Title: Portfolio Manager
Address for Notice: 151 Detroit Street
Denver CO 80206
Facsimile No.: 303-394-7714
Attn: Heidi Walter
V.P. and Assistant General
Counsel
Leaf Investment Partners LP
By:/S/ Seymour Goldblatt
----------------------------------------
Name: Seymour Goldblatt
Title: Managing Principal of S Squared
Capital LLC which is the General
Partner of Leaf Investment
Partners LP
Address for Notice: S Squared Technology
Corp. Suite 4200
515 Madison Ave.
New York, NY 10022-5474
Facsimile No.: 212-838-3873
Attn: Mr. Seymour L Goldblatt
Leaf Offshore Investment Fund Ltd
By:/S/ Seymour Goldblatt
----------------------------------------
Name: Seymour Goldblatt
Title: Managing Principal of S Squared
Capital LLC which is the General
Partner of Leaf Offshore
Investment Fund Ltd
Address for Notice: S Squared Technology
Corp. Suite 4200
515 Madison Ave.
New York, NY 10022-5474
Facsimile No.: 212-838-3873
Attn: Mr. Seymour L Goldblatt
Bear Stearns Sec. Corp, Cust J Steven
Emeraon IRA ROII
By:/S/ J Steven Emerson
----------------------------------------
Name: J Steven Emerson
Title: Self Ben self directed IRA
Address for Notice: Bear Stearns Sec. Corp
Cust J Steven Emerson
IRA ROII
1999 Avenue of the
States #2530
Los Angeles CA 90067
Facsimile No.: 310-201-3910
Attn: Rita Swann
Bear Stearns Sec. Corp, Cust J Steven
Emeraon ROTH IRA
By:/S/ J Steven Emerson
----------------------------------------
Name: J Steven Emerson
Title: Self Ben self directed IRA
Address for Notice: Bear Stearns Sec. Corp
Cust J Steven Emerson
IRA ROII
1999 Avenue of the
States #2530
Los Angeles CA 90067
Facsimile No.: 310-201-3910
Attn: Rita Swann
Baron Small Cap Fund, A series of Baron
Asset Fund
and
Baron iOpportunity Fund, A series of Baron
Asset Fund
By:/S/ Linda S. Martinson
----------------------------------------
Name: Linda S. Martinson
Title: V.P. and General Counsel
Address for Notice: 767 Fifth Avenue
49th Floor
New York, NY 10153
Facsimile No.: 212-821-9001
Attn: Linda S. Martinson, Esq.
Crestview Capital Master, LLC
By:/S/ Robert Hoyt
----------------------------------------
Name: Robert Hoyt
Title: Managing Director
Address for Notice: 95 Revere Drive Ste A
Northbrook, IL 60062
Facsimile No.: 847-559-5807
Attn: Robert Hoyt
Topaz Partners
By:/S/ Jeremy Garber
----------------------------------------
Name: Jeremy Garber
Title: Chief Operating Officer
Address for Notice: c/o Jemmco Capital Corp
900 Third Ave
New York, NY 10022
Facsimile No.: 212-644-1175
Attn: Jeremy Garber
Corsair Capital Partners, LP
By:/S/ Jay Petschek
----------------------------------------
Name: Jay Petschek
Title: Managing Member
Address for Notice: 350 Madison Avenue
9th Floor
New York, NY 10017
Facsimile No.: 212-389-8259
Attn: Tommy Hess
Corsair Capital Investors, Ltd.
By:/S/ Jay Petschek
----------------------------------------
Name: Jay Petschek
Title: Managing Member
Address for Notice: 350 Madison Avenue
9th Floor
New York, NY 10017
Facsimile No.: 212-389-8259
Attn: Tommy Hess
Corsair Capital Partners 700, LP
By:/S/ Jay Petschek
----------------------------------------
Name: Jay Petschek
Title: Managing Member
Address for Notice: 350 Madison Avenue
9th Floor
New York, NY 10017
Facsimile No.: 212-389-8259
Attn: Tommy Hess
FlyLine Holdings, Ltd.
By:/S/ William F. Tempel
----------------------------------------
Name: William F. Tempel
Title: Member
Address for Notice: 115 West 2nd Street
Suite 103
Fort Worth, TX 76102
Facsimile No.: 817-509-8702
Attn: Sara Nicholson
SRG Capital, LLC
By:/S/ Andrew J. Turchin
----------------------------------------
Name: Andrew J. Turchin
Title: Chief Financial Officer
Address for Notice: 120 Broadway
40th Floor
New York, NY 10271
Facsimile No.: 212-571-1279
Attn: Yoav Roth
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees,
transferees, assignees and successors-in-interest may, from time to time, sell
any or all of their shares of Common Stock on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices. The Selling Stockholders may
use any one or more of the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o to cover short sales made after the date that this Registration
Statement is declared effective by the Commission;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a
security interest in some or all of the Shares owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell shares of Common Stock from time to time under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
Upon the Company being notified in writing by a Selling Stockholder
that any material arrangement has been entered into with a broker-dealer for the
sale of Common Stock through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
supplement to this prospectus will be filed, if required, pursuant to Rule
424(b) under the Securities Act, disclosing (i) the name of each such Selling
Stockholder and of the participating broker-dealer(s), (ii) the number of shares
involved, (iii) the price at which such the shares of Common Stock were sold,
(iv)the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and (vi) other facts material to the transaction.
In addition, upon the Company being notified in writing by a Selling Stockholder
that a donee or pledge intends to sell more than 500 shares of Common Stock, a
supplement to this prospectus will be filed if then required in accordance with
applicable securities law.
The Selling Stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
The Selling Stockholders will be responsible to comply with the
applicable provisions of the Securities Act and Exchange Act, and the rules and
regulations thereunder promulgated, including, without limitation, Regulation M,
as applicable to such Selling Stockholders in connection with resales of their
respective shares under this Registration Statement.
Each Selling Stockholders has represented and warranted to the Company
that it does not have any agreement or understanding, directly or indirectly,
with any person to distribute the Common Stock.
The Company is required to pay all fees and expenses incident to the
registration of the shares. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
s