REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of September 14, 2000, by and among Infocast Corporation, a
Nevada corporation (the "Company"), and Sun Microsystems, Inc. (the
"Purchaser").
In order to induce the Purchaser to enter into the Stock Purchase
Agreement, dated as of the date hereof, between the Company and the Purchaser
(the "Purchase Agreement"), the Company has agreed to provide the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the Closing under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
(a) "Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
(b) "Commission" means the Securities and Exchange Commission or any
successor thereto.
(c) "Common Stock" means the common stock, par value $0.001 per
share, of the Company.
(d) "Effectiveness Date" means the date that is 120 days after each
Closing Date under the Purchase Agreement.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
(f) "Filing Date" means the date that is 60 days after each Closing
Date under the Purchase Agreement.
(g) "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
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,
including, without limitation, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such 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.
(h) "Registrable Securities" means shares of Common Stock issued and
sold under the Purchase Agreement or pursuant to the exercise of the Warrant,
upon original issuance thereof and at all times subsequent thereto, until, in
the case of any such share of Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is salable by the holder thereof pursuant to Rule
144 within any three-month period without limitations on volume or (iii) it is
distributed to the public pursuant to Rule 144.
(i) "Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
(j) "Rule 144" means Rule 144 promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar Rule or regulation hereafter adopted by the Commission.
(k) "Rule 415" means Rule 415 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar Rule or regulation hereafter adopted by the Commission.
(l) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
(m) "Shelf Registration" means either the Initial Shelf
Registration, the Second Shelf Registration or a Subsequent Shelf Registration,
as appropriate.
(n) "Special Counsel" means Wilson Sonsini Goodrich & Rosati, or
such other special counsel to the holders of the Registrable Securities as shall
be specified by the holders of a majority in aggregate principal amount of the
Registrable Securities, the fees and expenses (not to exceed $20,000) of which
will be paid by the Company pursuant to Section 5 hereof. There shall be only
one Special Counsel.
(o) "Warrant" shall mean the Warrant, dated September 14, 2000,
issued by the Company to the Purchaser.
2. Shelf Registration.
(a) The Company shall prepare and file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering the resale from time to time by the holders thereof of the
Registrable Securities, which shall include (subject to the
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limitations of law, including Regulation M) the shares of Common Stock (i)
acquired by the Purchaser at the First Closing (as defined in the Purchase
Agreement) and (ii) to be acquired upon the exercise of the Warrant (the
"Initial Shelf Registration"). Upon a Second Closing (as defined in the Purchase
Agreement), if any, the Company shall prepare and file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering the resale from time to time by the holders thereof of the
Registrable Securities, which shall include the shares of Common Stock acquired
by the Purchaser at the Second Closing (the "Second Shelf Registration"). The
Initial Shelf Registration and the Second Shelf Registration shall be on Form
S-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such holders. The Company shall use its best efforts to
cause the Initial Shelf Registration and the Second Shelf Registration to be
filed with the Commission on or before the Filing Date and to be declared
effective under the Securities Act on or prior to the Effectiveness Date and to
keep the Initial Shelf Registration and the Second Shelf Registration
continuously effective under the Securities Act until the date that is 2 years
(or for such other time period as shall be specified in Rule 144(k) as the
holding period required for termination of certain restrictions on sales of
restricted securities by persons other than affiliates) from the date of the
latest of the (x) last Closing under the Purchase Agreement or (y) last purchase
of shares of Common Stock through the exercise of the Warrant (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Securities covered by the Initial Shelf Registration and the Second Shelf
Registration have been sold, or (ii) a Subsequent Shelf Registration (as defined
in Section 2(b)) covering all of the Registrable Securities has been declared
effective under the Securities Act, or (iii) there cease to be outstanding any
Registrable Securities.
(b) If the Initial Shelf Registration, the Second Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its best efforts
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation of
effectiveness amend the Shelf Registration in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415 covering all
of the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its best efforts
to cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration or
Subsequent Shelf Registration, as the case may be, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the holders of a majority in aggregate principal amount
of the Registrable Securities.
3. Company Registration.
(a) If the Company shall determine to register any of its equity
securities, other than (i) a registration relating solely to employee benefit
plans, (ii) a registration relating solely to a Rule 145 transaction, or (iii) a
registration in which the only equity security being registered is Common Stock
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issuable upon conversion of convertible debt securities which are also being
registered, the Company will:
(i) promptly give to each holder of Registrable Securities
written notice thereof; and
(ii) include in such registration (and any related
qualifications including compliance with Blue Sky laws), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after the date of receipt of such written
notice from the Company, by any holder of Registrable Securities.
(b) If a holder of Registrable Securities decides not to include all
of its Registrable Securities in any such registration statement, such holder
shall nevertheless continue to have the right to include any Registrable
Securities in any subsequent registration statement or registration statements
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(c) The registration rights set forth in this Section 3 shall
terminate with respect to shares of Common Stock sold pursuant to (i) the
Purchase Agreement, on the second anniversary of the Second Closing Date (as
such term is defined in the Purchase Agreement) and (ii) the Warrant, on the
fifth anniversary of the date of this Agreement.
4. Registration Procedures. In connection with the Company's registration
obligations under Sections 2 and 3 hereof, the Company shall effect such
registration to permit the sale of the Registrable Securities in accordance with
the method or methods of disposition thereof intended by the holders of such
Registrable Securities (except that the Company shall not be required to effect
any registration pursuant to Section 2 involving an underwriting), and pursuant
thereto the Company shall as expeditiously as practicable:
(a) Prepare and file with the Commission a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided, that before filing any such
Registration Statement or Prospectus or any amendments or supplements thereto
(other than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable securities
laws or stock exchange requirements to file) the Company shall furnish to the
Special Counsel copies of all such documents proposed to be filed, which
documents will be subject to the review of such Special Counsel and the holders,
and the Company shall not file any such Registration Statement or amendment
thereto or any Prospectus or any amendment or supplement thereto (other than
such documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and that the Company is required by applicable
securities laws or stock exchange requirements to file) to which the holders of
a majority in aggregate principal amount of the Registrable Securities covered
by such Registration Statement or the Special Counsel shall reasonably object on
a timely basis.
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(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be amended or
supplemented by any required amendment or Prospectus supplement, and as so
amended or supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the methods of disposition intended by the holders thereof
set forth in such Registration Statement as so amended or in such Prospectus as
so amended or supplemented.
(c) Notify the Special Counsel and any selling holders of
Registrable Securities promptly, and (if requested by any such Person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a 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 during the period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement 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
existence of any fact or the happening of any event which makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, 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 not misleading, and that in the case of
the Prospectus, 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 the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of 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) If reasonably requested by the holders of a majority in
aggregate principal amount of the Registrable Securities being sold, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment such
information as the Company or the holders of a majority in aggregate principal
amount of such Registrable Securities agree should be included therein as
required by applicable law, (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment, and (iii) supplement or make
amendments to any Registration Statement consistent with clause (i) or (ii)
above; provided,
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that the Company shall not be required to take any actions under this Section
4(e) that are not, in the opinion of outside counsel for the Company, in
compliance with applicable law.
(f) Furnish to each selling holder of Registrable Securities and the
Special Counsel, upon request and without charge, at least one conformed copy of
the Registration Statement or Statements and any post-effective amendment
thereto, including financial statements (but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits,
unless requested in writing by such holder or counsel).
(g) Deliver to each selling holder of Registrable Securities and the
Special Counsel, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; and the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by each of the selling
holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling holders of Registrable
Securities and their respective counsel 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 any seller reasonably requests
in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in any such jurisdiction where it
is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of such selling holder, in which
case the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals, as may be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v)
or 4(c)(vi) above, prepare a supplement or post-effective amendment to each
Registration Statement or an amendment or supplement to the related Prospectus
or any document incorporated therein by reference or file any other required
document (such as a Current Report on Form 8-K) so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not 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 the light of the circumstances under which they were
made, not misleading.
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(k) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of the holders of
Registrable Securities being sold and any attorney or accountant retained by
such selling holders, financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries as they may reasonably
request, and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
representative, attorney or accountant in connection with such disposition;
provided, that any records, information or documents that are designated by the
Company in writing as confidential at the time of delivery of such records,
information or documents shall be kept confidential by such Persons, and such
Persons shall so agree in writing, unless (i) such records, information or
documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities or (iii) disclosure of such records, information or documents is
otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
(l) Comply with all applicable rules and regulations of the
Commission and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar Rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company, after the effective date
of a Registration Statement, which statements shall cover said 12-month periods.
(m) Unless any Registrable Securities shall be in book-entry only
form, cooperate with the selling holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as the holders may request.
(n) Provide the transfer agent for the Common Stock with printed
certificates for the Registrable Securities which are in a form eligible for
deposit with The Depository Trust Company.
(o) Cause the Common Stock to be listed on each securities exchange
or quotation system on which the Company's Common Stock is then listed no later
than the date the Registration Statement is declared effective and, in
connection therewith, to the extent applicable, to make such filings under the
Exchange Act and to have such filings declared effective thereunder.
The Company may require each selling holder of Registrable
Securities as to which any registration is being effected, and such selling
holder of Registrable Securities agrees, to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each holder of Registrable Securities as to which any
Registration Statement is being effected agrees promptly to furnish to the
Company all information required to be disclosed in order to make the
information previously
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furnished to the Company by such holder not misleading. Any sale of any
Registrable Securities by any holder shall constitute a representation and
warranty by such holder that the information relating to such holder and its
plan of distribution is as set forth in the Prospectus delivered by such holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such holder or
its plan of distribution necessary to make the statements in such Prospectus, in
the light of the circumstances under which they were made, not misleading.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(ii)-(vi) hereof,
such holder will forthwith discontinue disposition of such Registrable
Securities covered by the applicable Registration Statement or Prospectus until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(j) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus.
5. Registration Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company (the "Registration Expenses")
shall be borne by the Company whether or not any of the Registration Statements
become effective and whether or not any of the Registrable Securities are
transferred pursuant to the Registration Statement. Such fees and expenses shall
include, without limitation, (a) all registration and filing fees (including,
without limitation, fees and expenses (i) with respect to designation of the
Registrable Securities as eligible for trading, and (ii) of compliance with
securities or Blue Sky laws, (b) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
Prospectuses), (c) messenger, telephone and delivery expenses, (d) fees and
disbursements of counsel for the Company and the Special Counsel, (e) reasonable
fees and disbursements of all independent certified public accountants retained
by the Company, (f) Securities Act liability insurance if the Company so desires
such insurance, and (g) fees and expenses of all other Persons retained by the
Company. In addition, the Company will, in any event, bear its own internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the Registrable Securities on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any Person, including special experts, retained by the Company.
6. Superior Registration Rights. From and after the date of this Agreement, the
Company shall not, without the prior written consent of the holders of a
majority of the Registrable Securities then outstanding, enter into any
agreement with any holder or prospective holder to (i) grant rights pari passu
or superior to those granted to the Purchaser in Sections 2 and 3 of this
Agreement or (ii) include such securities in any registration statement filed
under Section 2 or Section 3 hereof, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of the Registrable Securities of the Purchaser or its
permitted transferees which is included.
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7. Indemnification.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities, the officers, directors
and agents and employees of each of them, each Person who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
such holder and the officers, directors, agents and employees of any such
controlling person, from and against all losses, claims, damages, liabilities,
costs (including, without limitation, the costs of preparation and reasonable
attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out
of or based upon any untrue or allegedly untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based solely upon information
furnished in writing to the Company by such holder expressly for use therein.
The Company shall also indemnify each selling broker, dealer manager and similar
securities industry professional participating in the distribution, and each of
their officers, directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder agrees to indemnify, to the fullest
extent permitted by law, the Company, its officers, directors, agents and
employees, 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 officers,
directors, agents or employees of such controlling persons, from and against all
Losses arising out of or based upon any untrue or allegedly untrue statement of
a material fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged 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
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such document in reliance upon and in conformity with
written information furnished to the Company by such holder specifically for use
therein and such information was solely relied upon by the Company in
preparation of such Registration Statement, Prospectus or preliminary
prospectus, and such information, if it contains an untrue statement or has an
omission, was not timely corrected, updated or supplemented in a writing by such
holder to the Company expressly for use in such Registration Statement or
Prospectus. In no event shall the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the net
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 Person shall be
entitled to indemnity hereunder (an "indemnified party"), such indemnified party
shall give prompt notice to the party from which such indemnity is sought (the
"indemnifying party") of any claim or of the commencement of any proceeding with
respect to which such indemnified party seeks
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indemnification or contribution pursuant hereto; and the indemnifying party,
upon request of the indemnified party, shall assume the defense and retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. The failure to so notify the indemnifying party
shall not relieve the indemnifying party of any obligation or liability except
and only to the extent that such failure was prejudicial to the indemnifying
party and the indemnifying party was actually damaged or suffered any loss or
incurred any additional expense as a result thereof. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (A) the fees and
expenses of more than one separate firm (in additional to any local counsel) for
all holders and all persons, if any, who control any holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (B) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign a
Registration Statement and each person, if any, who controls the Company within
the meaning of either such section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. The indemnifying party shall not consent
to entry of any judgment or enter into any settlement or otherwise seek to
terminate any proceeding in which any indemnified party is or could be a party
and as to which indemnification or contribution could be sought by such
indemnified party under this Section 7, unless such judgment, settlement or
other termination includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all liability in respect
of such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7(a) or 7(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall, jointly and severally, contribute to the amount
paid or
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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 or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, 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 or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, 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 in
writing 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 any legal or other
fees or expenses incurred by such party in connection with any proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(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 provision of this Section 7(d), an indemnifying party that
is a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the total net price at
which the Registrable Securities sold by such indemnifying party and distributed
to the public exceeds the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement, the Securities Act or
otherwise. The provisions of this Section 7 shall survive so long as Registrable
Securities remain outstanding, notwithstanding any transfer of the Registrable
Securities by any holder or any termination of this Agreement.
8. Information Requirements.
(a) The Company shall file in a timely manner the reports required
to be filed by it under the Securities Act and the Exchange Act, and if at any
time the Company is not required to file such reports, it will, upon the request
of any holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 under the
Securities Act. The Company further covenants that it will cooperate with any
holder of Registrable Securities and take such further action as any holder of
Registrable Securities may reasonably request (including without limitation
making such representations as any such holder may reasonably request), all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act. Upon the
request of any holder of Registrable Securities, the Company shall deliver to
such holder a written statement as to whether it has complied with such filing
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
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(b) The Company shall file in a timely manner the reports required
to be filed by it under the Exchange Act and shall comply with all other
requirements set forth in the instructions to Form S-1 in order to allow the
Company to be eligible to file registration statements on Form S-1.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered, as of
the date hereof, and shall not enter, on or after the date of this Agreement,
any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
(b) 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 Company has obtained the written consent of the
holders of not less than a majority 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 holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of not less than a majority of the Registrable Securities being sold by
such holders; 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.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (a) in
the case of personal delivery, on the date of such delivery, (b) in the case of
delivery by air courier, on the business day following the day of dispatch and
(c) in the case of mailing, on the third business day following such mailing.
(x) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of this Section 9(c); and
(y) if to the Company, to Infocast Corporation, One
Richmond Street West, Suite 902, Toronto, Ontario, M5H 3W4, Attention: President
and Chief Executive Officer.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(d) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with respect
to the Registrable Securities in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and shall inure to the benefit of each holder of
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any Registrable Securities. The Company may not assign its rights or obligations
hereunder without the prior written consent of each holder of any Registrable
Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate 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 instrument.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
(h) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(i) Entire Agreement. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede and cancel all prior representations, alleged warranties,
statements, negotiations, undertakings, letters, acceptances, understandings,
contracts and communications, whether verbal or written, among the parties
hereto and thereto or their respective agents with respect to or in connection
with the subject matter hereof.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(k) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(l) Termination. This Agreement and the obligations of the parties
hereunder shall terminate at the end of the Effectiveness Period, except for any
liabilities or obligations under Section 5 or 6 or the proviso of Section 4(k)
above, each of which shall remain in effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
"COMPANY"
INFOCAST CORPORATION
By: /s/ James Leech
---------------------------------
Name: James Leech
Title: President
"PURCHASER"
SUN MICROSYSTEMS, INC.
By:___________________________________
Name:_________________________________
Title:________________________________