REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made as of July
11, 1997, by and among DeltaPoint, Inc., a California corporation (the
"COMPANY") and the persons and entities listed on the signature page hereto
under the caption Shareholders (the "SHAREHOLDERS").
R E C I T A L S
A. Concurrent or after with the execution and delivery of this Agreement,
the Shareholders are receiving certain shares (the "SHARES") of the Company's
Common Stock pursuant to a Stock Exchange Agreement, dated the date hereof,
between the Company and certain of the Shareholders.
B. In connection with the receipt of such shares, the Shareholders
wish to obtain certain registration and other rights from the Company and the
Company wishes the Shareholders to be subject to certain market standoff
restrictions and other obligations.
NOW, THEREFORE, in reliance on the foregoing recitals, and in and for
the mutual covenants and consideration set forth herein, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the common stock of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"HOLDER" shall mean any holder, or an assignee under Section 13
hereof, of outstanding Registrable Securities.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer
to a registration effected by preparing and filing a registration statement
in compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean the Shares and any shares of
Common Stock issued in respect of securities issued pursuant to the
conversion of the Shares upon any stock split, stock dividend,
recapitalization, substitution, or similar event; provided, however, that
Registrable Securities shall not include any (a) shares of Common Stock which
have previously been registered,
(b) shares of Common Stock which have previously been sold to the public, or
(c) securities which would otherwise be Registrable Securities held by a
Holder who is then permitted to sell all of such securities within any three
(3) month period following the Company's initial public offering pursuant to
Rule 144 if such securities then held by such Holder constitute less than one
percent of the Company's outstanding equity securities.
"REGISTRATION EXPENSES" shall mean all expenses (excluding
underwriting discounts and selling commissions) incurred in connection with a
registration under Sections 5 and 6 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements
of counsel for the Company, blue sky fees and expenses, and the expense of
any special audits incident to or required by any such registration.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 3 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities.
"SHARES" shall mean shares of the Company's Common Stock received
by the Shareholders pursuant to the terms of the Stock Exchange Agreement,
dated as of the date hereof, by and between the Company and certain of the
Shareholders.
2. RESTRICTIONS ON TRANSFERABILITY. The Restricted Securities held by
the Shareholders shall not be transferred except upon the conditions
specified in this Agreement, which conditions are intended to insure
compliance with the provisions of the Securities Act or, in the case of
Section 14 hereof, to assist in an orderly distribution. Each Shareholder
will cause any proposed transferee of Restricted Securities held by that
Shareholder to agree to take and hold those securities subject to the
provisions and upon the conditions specified in this Agreement.
3. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
and (ii) any securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped
or otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE SOLD OR
-2-
OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT
THE PRINCIPAL EXECUTIVE OFFICE OF THE CORPORATION.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a
new certificate therefor free of any transfer legend, if, with such request,
the Company shall have received either the opinion referred to in Section
4(i) or the "no-action" letter referred to in Section 4(ii) to the effect
that any transfer by such holder of the securities evidenced by such
certificate will not violate the Securities Act and applicable state
securities laws, unless any such transfer legend may be removed pursuant to
Rule 144(k), in which case no such opinion or "no-action" letter shall be
required.
4. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in
all respects with the provisions of this Section 4. Prior to any proposed
transfer of any Restricted Securities (other than under circumstances
described in Section 5 hereof), the holder thereof shall give written notice
to the Company of such holder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144 promulgated under the Securities Act or for a
transfer to a holder's spouse, ancestors, descendants or a trust for any of
their benefit, or in transactions involving the distribution without
consideration of Restricted Securities by a holder to any of its partners or
retired partners or to the estate of any of its partners or retired partners)
by either (i) a written opinion of legal counsel to the holder who shall be
reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to
the effect that the proposed transfer of the Restricted Securities may be
effected without registration under the Securities Act or (ii) a "no-action"
letter from the Commission to the effect that the distribution of such
securities without registration will not result in a recommendation by the
staff of the Commission that action be taken with respect thereto, whereupon
the holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
such holder to the Company. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear the restrictive legend
set forth in Section 3 above, except that such certificate shall not bear
such restrictive legend if the opinion of counsel or "no-action" letter
referred to above expressly indicates that such legend is not required in
order to establish compliance with the Act or if such legend is no longer
required pursuant to Rule 144(k).
5. REGISTRATION.
(a) REGISTRATION AFTER NINE MONTHS. Prior to the date occurring
nine months after
-3-
the date hereof, but subject to the conditions set forth below in Section
5(c) below, the Company shall use its best efforts to effect registration
(including, without limitation, the execution of an undertaking to file post
effective amendments, appropriate qualification under applicable blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit or facilitate
the sale and distribution of all or such portion of such Registrable
Securities that are released from the market standoff restrictions set forth
in Section 14(b)(i) hereof on the date occurring nine months after the date
hereof.
(b) REGISTRATION AFTER TWELVE MONTHS. Prior to the date occurring
twelve months after the date hereof, but subject to the conditions set forth
below in Section 5(c) below, the Company shall use its best efforts to effect
registration (including, without limitation, the execution of an undertaking
to file post effective amendments, appropriate qualification under applicable
blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act) as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities that are released from the market standoff
restrictions set forth in Section 14(b)(ii) hereof on the date occurring
twelve months after the date hereof.
(c) LIMITATIONS ON REGISTRATION OBLIGATION.
(i) The Company shall not be obligated to effect, or to take
any action to effect, any such registration pursuant to this
Section 5:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act; or
(B) After the Company has effected two (2) such
registrations pursuant to this Section 5 and such registrations have
been declared or ordered effective and the sales of such Registrable
Securities have closed.
(ii) If the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such
registration statement to be filed on or before the time filing would
be required and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer
such filing (but not more than twice) for a period of not more than
sixty (60) days after the date by which such registration would
otherwise be required.
The registration statement filed pursuant to the request of the
Holders, may, subject to the provisions of Section 5(d) below, include other
securities of the Company which are held by officers or directors of the
Company or which are held by persons who, by virtue of agreements with
-4-
the Company, are entitled to include their securities in any such
registration, but the Company shall have no right to include any of its
securities in any such registration except as provided in Section 5(d) below.
(d) UNDERWRITING. If Holders holding at least 60% of the Shares
intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company at least three
months prior to the date that registration is to be effected pursuant to
Section 5(a) or 5(b), without regard to the effect of Section 5(c). The
right of any Holder to registration pursuant to Section 5 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's eligible Registrable Securities in the
underwriting to the extent provided herein. A Holder may elect to include in
such underwriting all or a part of the Registrable Securities he holds that
are eligible for such registration.
If officers or directors of the Company shall request inclusion of
securities of the Company other than Registrable Securities in any
registration pursuant to Section 5, or if holders of securities of the
Company who are entitled by contract with the Company to have securities
included in such a registration (such officers, directors, and other
shareholders being collectively referred to as the "OTHER SHAREHOLDERS")
request such inclusion, the Holders shall, offer to include the securities of
such Other Shareholders in the underwriting and may condition such offer on
their acceptance of the further applicable provisions of this Agreement. The
Company shall (together with all Holders and Other Shareholders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters (the "UNDERWRITER") selected for such
underwriting by sixty percent (60%) of the Holders and reasonably acceptable
to the Company. Notwithstanding any other provision of this Section 5, if
the Underwriter determines that marketing factors require a limitation on the
number of shares to be underwritten and so advises the Holders and the
Company in writing, then the number of shares of Registrable Securities that
may be included in the registration and underwriting shall be allocated among
all such Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities owned by such Holders at the time of filing
such registration statement and eligible for inclusion in registration and no
shares of Other Shareholders shall be included in such registration. No
Registrable Securities excluded from the underwriting by reason of the
Underwriter's marketing limitation shall be included in such registration.
If any Holder or Other Shareholder disapproves of the terms of any such
underwriting, such holder may elect to withdraw therefrom by written notice
to the Company and the Underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
If the Underwriter has not limited the number of Registrable Securities or
other securities to be underwritten, the Company may include its securities
for its own account in such registration if the underwriter so agrees and if
the number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
6. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company, and all Selling Expenses shall be borne
by the holders of the securities so registered pro rata on the
-5-
basis of the number of their shares so registered; provided, however, that
the Company shall not be required to pay any Registration Expenses if, as a
result of the withdrawal of a request for registration by Holders, the
registration statement does not become effective, unless such withdrawal is
caused by a material adverse change in the business or operations of the
Company after such request for registration, or unless the Holders agree to
have such registration considered a registration pursuant to Section
5(c)(i)(B). If the Company is not required to pay any Registration Expenses,
then the Holders and Other Shareholders requesting registration shall bear
such Registration Expenses pro rata on the basis of the number of their
shares so included in the registration request, and such registration shall
not be considered a registration for purposes of Section 5(c)(i)(B).
7. REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of such registration and as to the
completion thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of one-hundred
and eighty (180) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto,
whichever first occurs; and
(b) Furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request; and
(c) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 5 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the
offer and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions, and provided further that if the
underwriter so requests the underwriting agreement will contain customary
indemnification and contribution provisions, and provided further that the
Underwriter is reasonably acceptable to the Company.
Notwithstanding the foregoing, the Company shall have the right to
suspend sales of Registrable Securities by Holders who propose to sell such
Registrable Securities pursuant to Section 5 hereof in the event that the
Company determines, in its good faith judgment, that there exists material
information regarding the Company that has not been disclosed to the public
and which is not disclosed (or incorporated by reference) in the registration
statement covering such Registrable Securities (the "UNDISCLOSED MATERIAL
INFORMATION"). In furtherance of the foregoing, prior to making any such
sale, any such Holder shall furnish to the Company a written notice stating
that it intends to make a sale. Within two (2) days of receipt of such
notice, the Company shall provide written notice to the Holders proposing to
sell Registrable Securities as to whether the Company shall suspend such sale
due to the existence of Undisclosed Material Information. The Holders shall
suspend any further sale of Registrable Securities pursuant to the
registration statement until the Company advises such Holders that the
registration statement has been amended. In such event, the Company shall
cause the registration statement to be amended as soon as reasonably
practicable, provided that the Company shall not be required to amend the
registration statement during any time
-6-
when the Company's officers and directors are prohibited from buying or
selling the Common Stock pursuant to the Company's insider trading policy.
Notwithstanding the foregoing sentence, the Company shall file any amendment
necessary for the Holders to recommence their sales under the registration
statement concurrently with the commencement of any period in which directors
and officers of the Company are allowed to buy or sell Common Stock pursuant
to the Company's insider trading policy. For such time period that the
Holders are not permitted to sell Registrable Securities registered under a
registration statement as a result of the application of the provisions of
this paragraph, such registration statement shall not be considered effective
during such time period for the purpose of any provision of this Agreement
that relates to the time period for which such registration statement shall
remain effective.
8. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, if
Registrable Securities held by such Holder are included in the securities
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by
the Company of the Securities Act including any rule or regulation thereunder
applicable to the Company relating to action or inaction required of the
Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating
and defending any such claim, loss, damage, liability or action, provided
that the Company will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement (or alleged untrue statement) or omission (or alleged
omission) based upon written information furnished to the Company by such
Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder and Other Shareholder will, if Registrable
Securities or other securities held by such Holder are included in the
securities as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors, officers and
agents and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other such Holder and Other Shareholder and each
of their officers, directors and partners, and each person controlling such
Holder or Other Shareholder, against all claims, losses, damages and
liabilities (or actions in respect thereof)
-7-
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, and will reimburse the Company and such Holders, Other
Shareholders, directors, officers, agents, partners, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating of defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder or Other Shareholder and
stated to be specifically for use therein; provided, however, that the
obligations of such Holders and Other Shareholders hereunder shall be limited
to an amount equal to the proceeds to each such Holder or Other Shareholder
of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 8
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party's expense, and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Agreement. No Indemnifying Party in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement 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 in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
9. INFORMATION BY HOLDER. Each Holder and each Other Shareholder
holding securities included in any registration shall furnish to the Company
such information regarding such Holder or Other Shareholder as the Company
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
10. LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. From and
after the date of this Agreement, the Company shall not enter into any
agreement with any holder or prospective holder of any securities of the
Company giving such holder or prospective holder the right to require the
Company to initiate any registration of any securities of the Company in
conflict with the rights granted to the Shareholders hereunder. Any right
given by the Company to any holder or
-8-
prospective holder of the Company's securities in connection with the
registration of securities shall be conditioned such that it shall be
consistent with the provisions of this Agreement and with the rights of the
Holders provided in this Agreement.
11. RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale
of the Restricted Securities to the public without registration, the Company
agrees to:
(a) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times
from and after the date occurring nine months after the date hereof;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject
to such reporting requirements;
(c) So long as a Shareholder owns any Restricted Securities,
furnish to the Shareholder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at
any time from and after the date occurring nine months after the date
hereof), and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a Shareholder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Shareholder to sell
any such securities without registration.
12. NO-ACTION LETTER OR OPINION OF COUNSEL IN LIEU OF REGISTRATION.
Notwithstanding anything in this Agreement to the contrary, if the Company
shall have obtained from the Commission a "no-action" letter in which the
Commission has indicated that it will take no action if, without registration
under the Securities Act, any Holder disposes of Registrable Securities
covered by any request for registration made under this Agreement in the
manner in which such Holder proposes to dispose of the Registrable Securities
included in such request, or if in the opinion of counsel for the Company
concurred in by counsel for such Holder no registration under the Securities
Act is required in connection with such disposition, the Registrable
Securities included in such request shall not be eligible for registration
under this Agreement; provided, however, with respect to any Holder who may
deemed to be an "affiliate," as that term is defined under Rule 144, if,
notwithstanding the opinion of such counsel, the Holder is unable to dispose
of all of the Registrable Securities included in his request in the manner in
which such Holder so proposes without registration, the Registrable
Securities included in such request shall be eligible for registration under
this Agreement.
13. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Shareholder's securities granted to Shareholder by
the Company under Section 5 hereof may be transferred or assigned by
Shareholder to any of the following persons ("Permitted Transferees"): (i)
any partner, former partner or affiliate of such Shareholder or (ii) a
transferee or assignee holding
-9-
at least 10,000 shares of Restricted Securities, provided that the Company is
given written notice by Shareholder at the time of said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and provided further that the transferee or
assignee of such rights is not deemed by the Board of Directors of the
Company, in its reasonable judgment, to be a competitor of the Company; and
provided further that the transferee or assignee of such rights assumes the
obligations of a Shareholder under this Agreement.
14. "MARKET STAND-OFF" AGREEMENTS.
(a) Each Shareholder agrees, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, not to sell
or otherwise transfer or dispose of any Common Stock (or other securities) of
the Company held by Shareholder (except to Permitted Transferees who have
agreed in writing to be bound by this Agreement as if they were Shareholders)
during a period of time determined by the Company and its underwriters (not
to exceed 180 days) following the effective date of a registration statement
of the Company filed under the Securities Act, provided that all officers and
directors of the Company who then hold Common Stock (or other securities) of
the Company enter into similar agreements and provided that the Company uses
reasonable efforts to obtain a similar covenant from all holders of at least
1% of the Company's outstanding securities. If any officer or director is
released from his obligations under such agreements prior to the end of the
lock-up period, each Shareholder shall similarly be released. Such agreement
shall be in writing in a form satisfactory to the Company and such
underwriter. The Company may impose stop-transfer instructions with respect
to the Shares (or securities) subject to the foregoing restriction until the
end of said period.
(b)
(i) Each Shareholder agrees not to sell or otherwise transfer
or dispose of more than 50% of the Shares initially held by
Shareholder (or any securities issued in respect thereof) until the
date occurring nine months after the date hereof.
(ii) Each Shareholder agrees not to sell or otherwise transfer
or dispose of the remainder of the Shares initially held by
Shareholder (or any securities issued in respect thereof) until the
date occurring twelve months after the date hereof.
(iii) The Company may impose stop-transfer instructions
with respect to the Shares subject (or any securities issued in
respect thereof) to the foregoing restrictions until the end of
said respective periods.
(iv) The provisions of this Section 14(b) shall not be
applicable to transfers to Permitted Transferees who have agreed in
writing to be bound by this Agreement as if they were Shareholders.
15. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit
to the jurisdiction of the federal and state courts of the State of
California with respect to the breach or interpretation of this Agreement or
the enforcement of any and all rights, duties, liabilities, obligations,
powers, and other relations between the parties
-10-
arising under this Agreement.
16. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding rights to
registration. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
17. NOTICES, ETC. Any and all notices permitted or required to be
given under this Agreement must be in writing. Notices will be deemed given
(i) when personally received or when sent by facsimile transmission (to the
receiving party's facsimile number), (ii) on the first business day after
having been sent by commercial overnight courier with written verification of
receipt, or (iii) on the third business day after having been sent by
registered or certified mail from a location on the United States mainland,
return receipt requested, postage prepaid, whichever occurs first, at the
address set forth below or at any new address, notice of which will have been
given in accordance with this Section:
If to DeltaPoint: DeltaPoint, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
Attn: Jeffrey F. Ait
With a copy to: Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Jeffrey D. Saper, Esq.
If to a Shareholder or any Shareholder's assignee or transferee meeting the
requirements of Section 13, at such Shareholder's address set forth on the
signature page of this Agreement or at such other address provided to
DeltaPoint by such Shareholder or any such assignee or transferee.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
19. AMENDMENTS. Any provision of this Agreement may be amended, waived
or modified upon the written consent of the Company and the Shareholders (or
their assignees to whom Shareholders have expressly assigned their rights in
compliance with Section 13 hereof) who then hold at least fifty percent (50%)
of the Registrable Securities then held by persons entitled to registration
rights hereunder provided further, any such amendment, waiver or modification
applies by its terms to each applicable Shareholder and each such assignee
and, provided further, that a Shareholder or such assignee hereunder may
waive any of such Holder's rights or the Company's obligations hereunder
without obtaining the consent of any other Shareholder or assignee.
-11-
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
DELTAPOINT, INC.
By: /s/ JEFFREY F. AIT
----------------------------------
Name: Jeffrey F. Ait
Title: Chief Executive Officer
-12-
SHAREHOLDER
(Print Name of Shareholder)
/s/
(Signature of Shareholder or Authorized Signatory)
(Print Name and Title of Authorized Signatory)
Address: ______________________________________
______________________________________
-13-