EXHIBIT 10.20
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
______________, 2000, between Perficient, Inc., a Delaware corporation (the
"Company), and the individuals listed on the signature page hereto (each, a
"Holder" and, collectively, the "Holders").
WHEREAS, the Company, the Holders, Perficient Compete, Inc. and Compete
Inc. are parties to that certain Agreement and Plan of Merger dated as of
February 16, 2000 (the "Merger Agreement"); and
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Merger Agreement, the Company has agreed to grant the
Holders the rights provided hereunder with respect to the shares of its
common stock, par value $0.001 per share ("Common Stock"), issued by the
Company to the Holders in accordance with the terms and subject to the
conditions of the Merger Agreement.
NOW, THEREFORE, the parties have agreed as follows:
1. DEFINITIONS.
(a) The term "Commission" means the Securities and Exchange
Commission.
(b) The term "Other Securities" means at any time those shares
of Common Stock which do not constitute Primary Securities or Registrable
Securities.
(c) The term "Person" means a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (by
conversion or otherwise, but disregarding any legal or other restrictions
upon the exercise of such right), whether or not such acquisition has
actually been effected.
(d) The term "Primary Securities" means at any time the
authorized but unissued shares of Common Stock or shares of Common Stock held
by the Company in its treasury.
(e) The term "Registrable Securities" means the Common Stock
issued to Holders pursuant to the Merger Agreement. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (b) all of such securities may be distributed by a
Holder to the public pursuant to Rule 144(k) (or any successor provision)
under the Securities Act within a thirty (30) day period, (c) such securities
shall have been otherwise transferred, new certificates for such securities
not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of such securities shall not
require registration or qualification of such securities
under the Securities Act or any similar state law then in force, or (d) such
securities shall have ceased to be outstanding.
(f) The term "Registration Expenses" means all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, all registration, filing and NASD fees, all
stock exchange listing fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort letters" required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance against liabilities arising out of the public offering
of the Registrable Securities being registered and any fees and disbursements
of underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of any Holder's Registrable Securities
pursuant to the shelf registration statement and the expenses of any separate
fees for counsel for such Holder, PROVIDED THAT, in any case where
Registration Expenses are not to be borne by the Company, such expenses shall
not include salaries of the Company's personnel or general overhead expenses
of the Company, premiums or other expenses relating to liability insurance
required by underwriters of the Company or other expenses for the preparation
of financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have incurred in
any event.
(g) The term "Securities Act" means the Securities Act of 1933,
as amended, or any successor law.
(h) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Merger Agreement.
2. CERTAIN RIGHTS OF THE HOLDERS.
(a) DEMAND REGISTRATION.
(1) At any time and from time to time beginning on the
one-year anniversary of the Closing Date (as defined in the Merger Agreement)
and ending on the ten-year anniversary of such Closing Date, any Holder(s)
holding no less than fifty percent (50%) of the Registrable Securities (or,
with respect to a second Demand Registration hereunder, fifty percent (50%)
of the remaining Registrable Securities), shall have the right to require the
Company to file a registration statement under the Securities Act covering
all or any part of their respective Registrable Securities, by delivering a
written request therefor to the Company specifying the number of Registrable
Securities to be included in such registration by such Holder(s), a price
range acceptable to such Holder(s) for the sale of such Registrable
Securities and the intended method of distribution thereof. All such
requests pursuant to this Section 2(a) are referred to herein as "DEMAND
REGISTRATION REQUESTS" and the registrations so requested are referred to
herein as "DEMAND REGISTRATIONS" and, with respect to any Demand
Registration, the Holder(s) making such demand for registration being
referred to as the "INITIATING HOLDER". As
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promptly as practicable, but no later than 10 Business Days after receipt of
a Demand Registration Request, the Company shall give written notice (the
"DEMAND EXERCISE NOTICE") of such Demand Registration Request to all Holders
of record of Registrable Securities. Upon receipt of the Demand Exercise
Notice, each Other Holder shall have 10 Business Days from the date of
receipt to deliver a written request to the Company asking that such Other
Holder's Registrable Securities be included in the registration statement.
Such written request by the Other Holder shall include the number of
Registrable Securities held by such Other Holder that he desires to be
included in the registration statement. The Company shall include in a
Demand Registration (i) the Registrable Securities of the Initiating Holder,
(ii) the Registrable Securities of any Other Holders that shall have made a
written request to the Company for inclusion thereof in such registration
(which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Other Holders) within 30 days after the
receipt of the Demand Exercise Notice and the Primary Securities and Other
Securities of the Company requested to be included in such registration by
holders of such Other Securities and (iii) any Primary Securities the Company
wishes to register.
The Company shall, as expeditiously as practicable following a Demand
Registration Request, use its best efforts to (i) prepare, file and cause to
become effective registration of the Registrable Securities on Form S-1, Form
SB-2 or Form S-3 (if available) or any successor form promulgated by the SEC
pursuant to this Section 2(a)(A), and (ii) if requested by the Initiating
Holder, request acceleration of the effective date of the registration
statement relating to such registration.
(2) The rights of Holders of Registrable Securities to
request Demand Registrations pursuant to this Section 2(a) are subject to the
following limitations:
(i) the Company shall not be required to take any action to
effect any Demand Registration after it has effected two (2)
such registrations pursuant to this Section 2 (a), and such
registrations have been declared or ordered effective;
PROVIDED, if the number of Registrable Securities requested
to be included in such registration exceeds the number which,
in the opinion of the managing underwriter, can be sold in
such offering within a price range acceptable to the
Initiating Holder and as a result only a pro rata portion of
the Initiating Holder's Registrable Securities representing
less than seventy five percent (75%) of the Registrable
Securities of the Initiating Holder requested by such
Initiating Holder for inclusion are included in the
registration and underwriting pursuant to Section 2(a)(C),
then such registration shall not be deemed to be a Demand
Registration under this Section 2(a);
(ii) the Company shall not be required to take any action to
effect any Demand Registration within the 90-day period
following the effective date of a previous Demand
Registration; and
(iii) If the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the
Company stating that in the good faith
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judgment of the Board of Directors of the Company, it would
be materially detrimental to the Company (including to any
material proposed or planned material transaction involving
the Company) and its stockholders for such registration to
be effected at such time, in which event the Company shall
have the right to defer the filing of the registration
statement for a period of not more than 90 days after
receipt of the request from the Holder under this Section
2(a); provided, however, that the Company shall not utilize
this right more than once in any twelve month period. In
such event, the Holders requesting such Demand Registration
will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not
count as one of the permitted Demand Registrations
hereunder and the Company will pay all Registration
Expenses in connection with such registration.
(3) In the event that a registration pursuant to this
Section 2(a) is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as part of the notice given pursuant
to Section 2(a)(1) above. In such event, the right of any Holder to
registration pursuant to this Section 2(a) shall be conditioned upon such
Holder's participation in the underwriting arrangements required by this
Section 2(a)(3), and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent requested shall be limited to the extent
provided herein.
The Company shall (together with all Holders proposing to distribute
their Registrable Securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter(s)
selected for such underwriting by the holders of a majority of the
Registrable Securities covered by such registration statement, but subject to
the Company's reasonable approval. Notwithstanding any other provision of
this Section 2(a)(3), if the managing underwriter of any underwritten
offering shall advise the Holders participating in a Demand Registration that
the Registrable Securities covered by the registration statement cannot be
sold in such offering within a price range acceptable to the Initiating
Holder, then the Initiating Holder shall have the right to notify the Company
that it has determined that the registration statement be abandoned or
withdrawn, in which event the Company shall abandon or withdraw such
registration statement and such action will not count as a Demand
Registrtion. If a requested registration pursuant to this Section 2(a)
involves an underwritten offering and the managing underwriter advises the
Company that, in its opinion, the number of securities requested to be
included in such registration (including securities of the Company which are
not Registrable Securities) exceeds the number which can be sold in such
offering within a price
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range reasonably acceptable to the Initiating Holder, then the Company shall
so advise all holders of Registrable Securities and the number of shares of
securities that may be included in the registration and underwriting shall be
allocated among all holders thereof in proportion, as nearly as practicable,
to the respective amounts of securities that were to be registered by such
holders. In the event that the number of Registrable Securities and Other
Securities requested by all holders thereof to be included in such
registration is less than the number which, in the opinion of the managing
underwriter, can be sold, the Company may inclde in such registration a
number of Primary Securities that the Company proposes to sell up to the
number of securities that, in the opinion of the managing underwriter, can be
sold in such offering within a price range acceptable to the Initiating
Holder. In the event that the number or amount of securities sold by
holder(s) of Registrable Securities exercising Demand Registration rights
pursuant to this paragraph shall be less than 75% of the Registrable
Securities as to which such Holder(s) requested registration pursuant to this
paragraph by reason of sales by other Persons as set forth in paragraph, then
such registration shall be deemed to be a registration pursuant to paragraph
2(b) (and the provisions of paragraph 2(b) shall apply and not the provisions
of paragraph 2(a)) and the holder(s) exercising Demand Registration rights
pursuant to this paragraph 2(a) shall be deemed not to have exercised such
rights. To facilitate the allocation of shares in accordance with the above
provisions, the Company or the underwriters may round the number of shares
allocated to any holder to the nearest 100 shares.
(b) PIGGYBACK REGISTRATION. (i) If, at any time beginning on
the one-year anniversary of the Closing Date (as defined in the Merger
Agreement) and ending on the ten-year anniversary of such Closing Date (or at
any time following the Closing Date with respect to a Registration Statement
that has been initially filed (as distinct from an amendment to a previously
filed Registration Statement) following the Closing Date that meets the
requirements of Section 3(c)(ii) hereof), the Company proposes to prepare and
file one or more registration statements or post-effective amendments thereto
covering equity or debt securities of the Company, or any such securities of
the Company held by its shareholders (in any such case, other than in
connection with a merger, acquisition or pursuant to Form S-8 or successor
form) (for purposes of this Section, collectively, the "Registration
Statement"), it will give written notice of its intention to do so by
registered mail ("Notice"), at least thirty (30) business days prior to the
filing of each such Registration Statement, to the Holders. Upon the written
request of any Holder (a "Requesting Holder"), made within twenty (20)
business days after receipt of the Notice, that the Company include any of
the Requesting Holder's Registrable Securities in the proposed Registration
Statement, the Company shall use its best efforts to effect the registration
under the Act of the Registrable Securities which it has been so requested to
register ("Piggyback Registration"), at the Company's sole cost and expense
and at no cost or expense to the Requesting Holder provided, however, that
if, in the written opinion of the Company's managing underwriter, if any, for
such offering, the inclusion of all or a portion of the Registrable
Securities requested to be registered, when added to the securities being
registered by the Company or the selling shareholder(s), will exceed the
maximum amount of the Company's securities which can be marketed (A) at a
price reasonably related to their then current market value, or (B) without
otherwise materially adversely affecting the entire offering, then the
Company may exclude from such offering all or a portion of the Registrable
Securities which it has been requested to register in the manner set forth in
clause (ii) below.
(ii) If securities are proposed to be offered for
sale pursuant to such Registration Statement by other security holders of the
Company and the total number of securities to be offered by the Requesting
Holder and such other selling security holders is required to be reduced
pursuant to a request from the managing underwriter (which request shall be
made only for the reasons and in the manner set forth above) the aggregate
number of Registrable Securities to be offered by the Requesting Holder
pursuant to such Registration Statement shall equal the number which bears
the same ratio to the maximum number of securities that the underwriter
believes may be included for all the selling security holders (including the
Requesting Holder) as the original number of Registrable Securities proposed
to
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be sold by the Requesting Holder bears to the total original number of
securities proposed to be offered by the Requesting Holder and the other
selling security holders.
(iii) If any Registrable Securities requested to be
included in a Piggyback Registration are not so included because of the
operation of the proviso of the first paragraph of this Section 2(b), then
the holders of such excluded Registrable Securities shall have the right to
require the Company, at its expense, to prepare and file another Registration
Statement under the Act covering such Registrable Securities, provided that,
if the underwriter so requests, such Registrable Securities shall not be sold
until the expiration of 90 days from the effective date of the offering that
gave rise to the piggyback registration rights that are the subject of this
Section 2(b).
(iv) Notwithstanding the provisions of this Section
2(b), the Company shall have the right at any time after it shall have given
written notice pursuant to this Section 2(b) (irrespective of whether any
written request for inclusion of such securities shall have already been
made) to elect not to file any such proposed Registration Statement, or to
withdraw the same after the filing but prior to the effective date thereof.
(c) The Company will not file any registration statement
under the Securities Act, unless it shall first have given to each Holder, at
least 30 days prior written notice thereof. If any such registration
statement refers to any Holder by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right within such
30 day period to require (i) the insertion therein of language, in form and
substance satisfactory to such Holder to the effect that the holding by the
Holder of such securities does not necessarily make the Holder a "controlling
person" of the Company within the meaning of the Securities Act and is not to
be construed as a recommendation by such Holder of the investment quality of
the Company's debt or equity securities covered thereby and that the Holder
will assist in meeting any future financial requirements of the Company or
(ii) in the event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to the Holder. If such Holder does
not respond within such 30 day period, the Company may proceed with the
filing.
(d) From and after the Closing Date, the Company shall
only enter into an agreement granting any holder or prospective holder of any
securities of the Company registration rights with respect to such securities
that are superior to the registration rights granted hereunder if the
Holders' respective position following such grant is no less favorable than
that of the officers, directors and beneficial owners of more than 5% of the
outstanding securities of the Company.
3. REGISTRATION PROCEDURES.
(a) If the Company is required to effect the registration of
the Registrable Securities under the Securities Act as provided in Section 2,
the Company shall, as expeditiously as possible (and in all events subject to
Section 2):
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(i) prepare and file with the Commission the requisite
registration statement to effect such registration (including such audited
financial statements as may be required by the Securities Act or the rules
and regulations promulgated thereunder) and thereafter cause such
registration statement to become and remain effective, PROVIDED, HOWEVER,
before filing a registration statement or prospectus or any amendments or
supplements thereto with the Commission, the Company will furnish to the
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement ("Holders' Counsel") copies of all
such documents proposed to be filed which documents will be subject to the
review and comment of such counsel and holders (which shall be provided in a
timely manner);
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until the sooner of (i) such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by each Holder set forth in such registration statement or (ii)
six months from the date of effectiveness of the registration statement;
(iii) furnish to each Holder (or underwriter, if any, of
the securities being sold by such Holder) such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as, such Holder
(and each such underwriter, if any) may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities laws or blue sky laws of such
jurisdictions as any Holder (and any underwriter of the Registrable
Securities being sold) shall reasonably request, to keep such registrations
or qualifications in effect for so long as such registration statement
remains in effect, and take any other action which may be necessary or
advisable to enable such Holder (and underwriter, if any) to consummate the
disposition in such jurisdictions of the Registrable Securities except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (iv) be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable each Holder to consummate the disposition of such
Registrable Securities;
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(vi) notify each Holder and Holders' Counsel (and the
managing underwriter or underwriters, if any) promptly and confirm such
advice in writing promptly thereafter:
(A) when the registration statement, the prospectus
or any prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when the same
has become effective;
(B) of any request by the Commission for amendments
or supplements to the registration statement or the prospectus or for
additional information;
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations and
warranties of the Company cease to be true and correct;
(E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose;
(vii) notify each Holder and Holders' Counsel, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing, and at the request of any Holder promptly prepare and furnish to
such Holder (and each underwriter, if any) a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(viii) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
(ix) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the Commission and will furnish to each
Holder at least five business days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus and
shall not file any thereof to which any Holder shall have reasonably objected
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on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or of the rules
or regulations thereunder;
(x) make available for inspection by any Holder, any
underwriter participating in any disposition pursuant to the registration
statement and any attorney or accountant retained by such Holder or such
underwriter (each, an "Inspector"), all financial and other records,
pertinent corporate documents and properties of the Company (the "Records"),
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection with
such registration in order to permit a reasonable investigation within the
meaning of Section 11 of the Securities Act;
(xi) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(xii) enter into such agreements and take such other
actions as any Holder shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xiii) use its best efforts to list all Registrable
Securities covered by such registration statement on any securities exchange
on which any of the securities of the same class as the Registrable
Securities are then listed; and
(xiv) use its best efforts to provide a CUSIP number for
the Registrable Securities, not later than the effective date of the
registration statement.
(b) Each Holder agrees that, upon receipt of any notice from
the Company of the occurrence of any event of the kind described in
subdivision (vii) of this Section, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(vii) of this Section.
(c) Notwithstanding anything to the contrary in this Agreement,
the Holders covenant and agree that in the event of a private or public
offering of Common Stock, the Holders shall be subject to the same
restrictions on transferability or lock-up of shares of Common Stock as the
underwriter of any such offering or any executive officer of the Company
shall require of the executive officers of the Company. In addition, each
Holder agrees that for a period beginning on the Closing Date (as defined in
the Merger Agreement) and ending one (1) year therefrom, he will not,
directly or indirectly, (a) sell, offer to sell, contract to sell, grant any
option to sell, any shares of Common Stock received hereunder or securities
convertible into or exchangeable for shares of Common Stock; (b) propose, or
publicly disclose an intent to propose, any of the foregoing; or (c) assist
or advise any other persons or entities in connection with the foregoing.
Notwithstanding the above, this prohibition shall not apply to (i) private
sales by the estate of any Holder upon the death of a Holder but only to the
extent of estate tax liability related to the transfer of the shares upon the
death of the Holder, and (ii) sales upon the exercise of piggy-back
registration rights, if and only if, current shareholders of the Company
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other than John Gillespie, who are officers of directors of the Company,
participate in any such public offering, subject to the restrictions included
herein. In addition, in no event shall any Holder have any demand,
piggy-back or other registration rights hereunder in connection with the
filing of a registration statement or any amendments thereto relating to the
registration of any securities of the Company that is initially filed with
the Commission prior to the Closing Date.
4. INDEMNIFICATION BY THE COMPANY.
(a) GENERAL RIGHTS.
(i) In the event of any registration of any securities of
the Company under the Securities Act, the Company will, and hereby does agree
to, indemnify and hold harmless in the case of any registration statement of
the Company, the Holders and any underwriter including the respective
directors, officers, agents and controlling persons (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), if any,
of each Holder and such underwriters against any losses, claims, damages,
liabilities or expense, joint or several, to which the Holder (or any
underwriter) or any such director, officer, agent or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or based upon any
untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and the Company will reimburse each Holder (or any underwriter) and each such
director, officer, agent and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding,
PROVIDED THAT the Company shall not be liable in such case to the extent that
any such loss, claim, damage, liability or action or proceeding in respect
thereof or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement exclusively in reliance upon and
in conformity with information furnished to the Company through an instrument
duly executed by each Holder, specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder (or
underwriter, if any) or any such director, officer, agent or controlling
person and shall survive the transfer of such securities by such Holder.
(ii) Each Holder jointly and severally will, and hereby
does agree to indemnify and hold harmless the Company and the directors,
officers, agents and controlling persons, if any, of the Company against any
losses, claims, damages, liabilities or expense to which the Company and the
directors, officers, agents and controlling persons, if any, of the Company
may become subject under the Securities Act insofar as such losses, claims,
damages, liabilities or expense arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which the
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Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent (and only to the extent) that such loss, claim, damage, liability or
expense occurs in exclusive reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with
such registration; provided that such Holder shall be liable under this
paragraph for only that amount of losses, claims, damages, liabilities or
expense as does not exceed the proceeds to such Holder as a result of the
sale of Registrable Securities pursuant to such registration. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any such director, officer, agent or
controlling person.
(b) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section,
such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, PROVIDED THAT the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section,
except to the extent that the indemnifying party is actually prejudiced in a
material manner by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that the indemnifying party may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement of any such
action which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability, or a covenant not to sue, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(c) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section (with appropriate
modifications) shall be given by the Company and the Holders with respect to
any required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(d) INDEMNIFICATION PAYMENTS. The indemnification required by
this Section shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
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(e) CONTRIBUTION. If the indemnification provided for in the
preceding subdivisions of this Section is unavailable to an indemnified party
in respect of any loss, claim, damage, liability or expense referred to
therein, 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 loss, claim, damage, liability or
expense (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Holders or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Holders or
underwriter, as the case may be, on the other in connection with the
statements or omissions which resulted in such loss, claim, damage, liability
or expense, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Holders or
underwriter, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company, by any Holder or by the underwriter and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, PROVIDED THAT
the foregoing contribution agreement shall not inure to the benefit of any
indemnified party if indemnification would be unavailable to such indemnified
party by reason of the provisions contained in the first sentence of
subdivision (a) of this Section and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (e) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section had been available under the circumstances.
Notwithstanding the provisions of this subdivision (e), neither the Holders
nor the underwriter shall be required to contribute any amount in excess of
the amount by which (i) in the case of any Holder, the net proceeds received
by such Holder from the sale of Registrable Securities or (ii) in the case of
an underwriter, the total price at which the Registrable Securities purchased
by it and distributed to the public were offered by the public exceeds, in
either such case, the amount of any damages that such Holder or underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11 the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
5. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the Holders to include
Registrable Securities in a registration statement undertaken pursuant to
this Agreement or which would adversely affect the ability of the Holders to
sell such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
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(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, if and only if the Company has obtained the written
consent of the Holders.
(d) SUCCESSORS AND ASSIGNS. This Agreement may not be assigned
by the Holders. All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed
or not. In addition, whether or not any express assignment has been made,
the provisions of this Agreement which are for the benefit of purchasers or
holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) JURISDICTION AND GOVERNING LAW. The Company and the
Holders each hereby consent to personal jurisdiction in any action brought
with respect to this Agreement and the transactions contemplated hereunder in
any federal or state court within the State of New York. This Agreement
shall be governed by and construed in accordance with the law of the State of
New York without giving effect to conflicts of law principles thereof.
(f) CONSTRUCTION. Section headings of this Agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
(g) SEVERABILITY. In the event that any provision hereof
would, under applicable law, be invalid or enforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid
and enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
(h) JOINT AGREEMENT. The provisions of this Agreement and each
document delivered pursuant hereto shall be deemed to be the joint effort of
each of the parties hereto and shall not be construed more severely or
strictly against any one or more parties.
(i) NOTICES. Except as otherwise provided in this Agreement, all
notices, requests and other communications shall be in writing and shall be
given to the Holder addressed to it in the manner set forth in the Merger
Agreement or at such other address as any Holder shall have furnished to the
Company in writing, and to the Company, to the attention of its Chief Executive
Officer, or at such other address, or to the attention of such other officer, as
the Company shall have furnished to the Holders. Each such notice, request or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including, without
limitation, by air courier), when delivered at the address specified above,
PROVIDED that any such notice, request or communication shall not be effective
until received.
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(j) COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
(k) UNDERWRITER HOLDBACK. The Holders agree that if the
Company proposes to offer securities pursuant to a Registration Statement
under the Securities Act pursuant to a firm commitment underwritten public
offering, then the Holders will, if requested by the Underwriter of such
proposed public offering, enter into such agreement that may be requested,
agreeing not to sell, pledge, hypothecate or otherwise dispose of any
Registrable Securities for the same period of time that is requested of
officers, directors and principal stockholders of the Company.
(l) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its other obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any
other party under this Agreement in accordance with the terms and conditions
of this Agreement in any court of the United States or any State thereof
having jurisdiction. Any remedy hereunder is subject to certain equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
(m) ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties and understanding between the Company and the
Holders relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PERFICIENT, INC.
By:
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Name: John T. McDonald
Title: Chief Executive Officer
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Sam Fatigato, individually
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Eric Simone, individually
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Robert A. Anderson, individually
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Joseph Klewicki, individually
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Fred Graichen, individually
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Courtney Spooner, individually
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Andrew Sweet, individually
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John Jenkins, individually
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Matthew Clark, individually
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