EXHIBIT 3
COMMUNICATION INTELLIGENCE CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of June
13, 1996, is made by and among Communication Intelligence Corporation, a
Delaware corporation (the "Company") and those parties listed on the signature
page hereto (the "Purchasers").
R E C I T A L S
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WHEREAS, pursuant to the terms of Subscription Agreements between the
Company and the Purchasers (the "Subscription Agreements"), the Purchasers are
purchasing from the Company shares of common stock, par value $0.01 per share,
of the Company (the "Common Stock") in such amounts as set forth on the
signature pages of the Subscription Agreements (collectively, the "Shares"); and
WHEREAS, as further inducement for the Purchasers to purchase the
Shares from the Company, the Company desires to undertake to register the
Shares, and the Extra Shares (as hereinafter defined), under the Securities Act
of 1933, as amended, and the rules and regulations thereunder (the "Securities
Act"), in accordance with, and subject to, the terms hereof.
NOW, THEREFORE, the Purchasers and the Company covenant and agree,
upon the terms and subject to the conditions set forth herein, as follows:
1. Definitions. For the purposes of this Agreement, the following
capitalized terms shall have the following meanings:
(a) "Extra Shares" shall mean that number of additional shares
of Common Stock which may be issued by the Company to a Holder pursuant to
Section 2 of the Subscription Agreements.
(b) "Holder" means, initially each Purchaser, and thereafter,
any person or entity (a "person") who at a given time is the holder of record of
any Registrable Securities, so long as such transfers or assignments were made
in compliance with Section 9 hereof.
(c) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act.
(d) "Registration Statement" means any registration statement or
comparable document of the Company under the Securities Act through which a
public sale or disposition of the Company's securities may be registered (except
a form used exclusively for the sale or distribution of securities in connection
with an employee stock option plan or in connection with a business
combination), the prospectus contained therein and all amendments and
supplements to such Registration Statement, including post-effective amendments,
and all material incorporated by reference in such Registration Statement.
(e) "Registrable Securities" means (i) the Shares; (ii) the
Extra Shares; and (iii) any other security of the Company issued as a dividend
or other distribution with respect to, or in exchange for or in replacement of
the Shares or the Extra Shares, excluding in all cases, however, any Registrable
Securities disposed of by a Holder in a transaction in which its registration
rights under this Agreement are not assigned pursuant to Section 9 of this
Agreement.
(f) "SEC" means the United States Securities and Exchange
Commission or any similar agency then having the authority to enforce the
Securities Act.
2. Holders' Registration.
(a) Obligation For Registration. Within thirty (30) days from
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the Closing Date (as defined in the Subscription Agreements), the Company shall
prepare and file a Registration Statement with the SEC to register the public
resale of the Registrable Securities by the Holders under the Securities Act.
The Company shall use its best efforts to (i) cause such Registration Statement,
when filed, to become effective under the Securities Act; and (ii) keep such
Registration Statement continuously effective until the earlier to occur of the
following: (x) the Registrable Securities covered by the Registration Statement
become eligible for resale without registration pursuant to Rule 144 under the
Securities Act (or a similar successor or additional exemption) and can be sold
by each Holder within the applicable volume restrictions of Rule 144 (except for
affiliates, as such term is defined in Rule 144); or (y) three years from the
effective date of such Registration Statement. Each Holder shall notify the
Company in writing within ten (10) days after the sale of the last of its
Registrable Securities to enable the Company to determine when its obligation to
continue effectiveness of the Registration Statement terminates.
(b) Notice of Registration. Within thirty (30) days prior to
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the proposed filing date of the Registration Statement referred to in
Section 2(a), the Company shall give written notice to the Holders of its
intention to file the Registration Statement, which notice shall state that the
Holders shall have ten days from the receipt of such notice to notify the
Company of an election NOT to have such Holder's Registrable Securities
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included in the Registration Statement. Within ten days after the receipt of
such notice, each Holder shall notify the Company if it elects NOT to have its
Registrable Securities included in the Registration Statement. In such event,
the Company shall have no further obligations to such Holder under this
Agreement. The right of any Holder to have Registrable Securities included in
the Registration Statement pursuant to this Section 2 shall be conditioned upon
such Holder's compliance in all material respects with the provisions of
Section 5 hereof.
(c) Additional Registration. If the Holders become entitled,
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pursuant to an event described in clause (iii) of the definition of Registrable
Securities, to receive any securities in respect of Registrable Securities that
were already included in a Registration Statement, subsequent to the date such
Registration Statement is declared effective, and the Company is unable under
the securities laws to add such securities to the then-effective Registration
Statement, the Company shall promptly file, in accordance with the procedures
more particularly set forth in this Section 2 and Section 4, an additional
Registration Statement with respect to any such new Registrable Securities. The
Company shall use its best efforts to (i) cause any such additional Registration
Statement, when filed, to become effective under the Securities Act; and (ii)
keep such additional Registration Statement effective during the period
described in clause (ii) of Section 2(a).
3. Suspension of Sales by Holders. If at any time when a
Registration Statement is effective with respect to Registrable Securities
pursuant to Section 2 hereof, the Company intends to file a registration
statement for an underwritten public offering of securities to be issued by the
Company, the Company shall promptly give written notice thereof to the Holders
(a "Company Notice"). Within twenty days after receipt of a Company Notice, any
Holder owning Registrable Securities covered by an effective Registration
Statement may notify the Company of such Holder's desire to have its Registrable
Securities included in the registration statement covering such underwritten
offering. Such Holders shall be permitted to include in such underwritten
offering (i) not less than that amount of Registrable Securities which equals
50% of the total number of securities to be registered in the registration
statement relating to the underwritten offering, pro rata based on the number of
Registrable Securities requested to be included in the registration statement
covering the underwritten offering by the Holders, and (ii) such additional
Registrable Securities as shall be consented to by any such underwriter.
Holders of any Registrable Securities covered by an effective Registration
Statement which have not been included in the registration statement covering
the underwritten offering shall suspend offers and sales of their Registrable
Securities covered by such Registration Statement for a period commencing
fourteen days prior to the anticipated filing of any such registration statement
and terminating not later than 150 days from the effective date of the
registration statement relating to such underwritten offering (a "Suspension
Period"); provided, however, that the Holders shall only be required to suspend
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such offers and sales of their Registrable Securities (i) if so requested, in
writing, by the underwriter of any such offering, (ii) if and to the extent that
any other securityholders of the Company whose securities have been registered
by the Company pursuant to registration rights also agree to suspension of their
sales. Notwithstanding the foregoing, Holders may sell Registrable Securities
during the Suspension Period in privately negotiated transactions made in
accordance with the terms of this Agreement, provided that such transfers are
made in compliance with the Securities Act and applicable state securities laws.
The Holders agree that, during any such Suspension Period, the Holders shall not
sell, make any short sale of, pledge, grant any option for the purchase of or
otherwise dispose of any Registrable Securities without the prior written
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consent of such underwriter(s), and shall enter into such agreements with such
underwriter(s) with respect to the foregoing as are reasonably requested by such
underwriter(s). Registrable Securities shall only be included in a registration
statement covering an underwritten offering upon such terms and conditions as
shall be established by such underwriter or underwriters for the securities to
be sold by the Company. Any future registration rights granted by the Company
shall contain the same restrictions as those imposed hereby.
4. Obligations of the Company. In connection with the registration
of the Registrable Securities pursuant to Section 2 of this Agreement, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a Registration Statement with
respect to all Registrable Securities included therein, and use its best efforts
to cause the Registration Statement to become effective as soon as reasonably
possible after such filing, and to keep the Registration Statement effective for
the period specified in Section 2 hereof, which Registration Statement shall not
contain during such period any untrue statement of a material fact or omit to
state during such period a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(b) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective for the period specified
in Section 2 hereof and as may be required by the Securities Act, and during
such period to comply with the provisions of the Securities Act with respect to
the Registration Statement.
(c) Furnish promptly to each Holder whose Registrable Securities
are included in the Registration Statement such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Holder may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by such Holder.
(d) Use its best efforts to register and qualify the Registrable
Securities covered by the Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders and prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements and to take such other actions as may
be necessary to maintain such registration and qualification in effect at all
times during which it has agreed to use its best efforts to keep a Registration
Statement effective under the Securities Act pursuant to the terms of this
Agreement, and to take all other actions necessary or advisable to enable the
disposition of such securities in such jurisdictions, provided that the Company
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shall not be required in connection therewith or as a condition thereto to
qualify to do business, to file a general consent to service of process, to
subject itself to general taxation in any such states or jurisdictions or to
make any change in its charter or bylaws which the Board of Directors determines
to be contrary to the best interest of the Company and its shareholders.
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(e) Notify the Holders who hold Registrable Securities being
sold of the happening of any event as a result of which the prospectus included
in the Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Company
shall promptly amend or supplement the Registration Statement to correct any
such untrue statement or omission.
(f) Notify the Holders who hold Registrable Securities being
sold of the issuance by the SEC or any state securities commission or agency of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will use its best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time.
(g) Permit a single firm of counsel, designated as Holders'
counsel by the Holders of a majority of the Registrable Securities included in
such Registration Statement (the "Majority Holders"), to review the Registration
Statement and all amendments and supplements thereto within a reasonable period
of time prior to each filing, and shall not file any document in a form to which
such counsel reasonably objects.
(h) Furnish to the Holders, on the effective date of the
Registration Statement, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given in such an offering, addressed to the Company,
on which the Holders shall be permitted to rely (and a copy of which shall be
delivered to the Holders); and (ii) a "cold comfort" letter, dated such date,
from the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
securityholders in such an offering, so addressed.
(i) Make available for inspection by representatives of the
Majority Holders and any counsel, accountants or other agents retained by any
thereof, all pertinent financial and other records, corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such party in
connection with the Registration Statement.
(j) Use its best efforts to cause the Registrable Securities
being sold to be listed on the NASDAQ SmallCap Market.
(k) Take all actions reasonably necessary to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be sold pursuant to the
Registration Statement and to enable such certificates to be in such
denominations and registered in such names as the Holders of the Registrable
Securities being sold.
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(l) Take all other actions reasonably necessary to expedite and
facilitate disposition by the Holders of the Registrable Securities being sold
pursuant to the Registration Statement.
5. Obligations of the Holders. In connection with the registration
of the Registrable Securities, the Holders shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to each
Holder that such Holder shall furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended methods of
disposition of such securities as shall be reasonably required to effect the
registration of the Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably request. The
Company shall notify each Holder of the information the Company requires from
each such Holder if it elects to have any of his Registrable Securities included
in the Registration Statement.
(b) Each Holder by his acceptance of the Shares agrees to
cooperate with the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Holder has notified the Company in
writing of its election to exclude all of its Registrable Securities from the
Registration Statement.
(c) Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3 or
Section 4(e), such Holder will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder's receipt of (i) confirmation from the
Company that such sales may resume under the terms of Section 3, or (ii) the
copies of the supplemented or amended prospectus contemplated by Section 4(e)
and, if so requested in writing by the Company, such Holder shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the Company a
certificate of such destruction) all copies, other than the permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities at the time of receipt of such notice.
6. Expenses of Registration. All expenses incurred in connection
with registration, filings or qualifications pursuant to Sections 2 and 4,
including, without limitation, all registration, listing, filing and
qualification fees, printers and accounting fees, the fees and disbursements of
counsel for the Company and the reasonable fees and disbursements of one firm of
counsel for the Holders, shall be borne by the Company.
7. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
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(a) To the fullest extent permitted by law, the Company will
indemnify and hold each Holder, its partners and their respective directors,
officers, employees and representatives, and each person who controls any such
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934 (the "1934 Act") (each such person being
referred to as an "Indemnified Person") harmless from and against any and all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
a Registration Statement, or in any amendment or supplement thereto, or arising
out of or based upon 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 light of the circumstances under which they were made,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
based upon information furnished in writing to the Company by such Indemnified
Person expressly for use therein. Notwithstanding the foregoing, the Company
shall not be obligated to so indemnify any such Holder, officer, director or
controlling person with respect to any loss, claim, damage, liability or expense
arising out of the failure by such person to comply with the prospectus delivery
requirements under the Securities Act and the rules and regulations thereunder.
(b) If any action or proceeding (including any governmental
investigation) shall be brought, threatened or asserted against any Indemnified
Person in respect of which indemnity may be sought from the Company, such
Indemnified Person shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including employment of counsel and the
payment of all expenses related thereto. Any such Indemnified Person shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Company has agreed to pay such
fees and expenses; or (ii) the Company shall have failed to assume the defense
of such action or proceeding and employ counsel in such action or proceeding; or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Person and the Company, and
such Indemnified Person shall have been advised by counsel that there may be one
or more legal defenses available to such Indemnified Person which are different
from or additional to those available to the Company (in which case, if such
Indemnified Person notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company will not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Person); provided, however, that the Company will not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys at any time for all such Indemnified
Persons, which firm shall be designated in writing by a majority in interest of
such Indemnified Persons. The Company shall not be liable for any default
judgment caused by any Indemnified Person or settlement of any such action or
proceeding or confession of judgment without its prior written consent, but if
settled with its written consent (which consent shall not be unreasonably
withheld), or if there be a final judgment (other than such default judgment)
for the plaintiff in any such action or proceeding, the Company agrees to
indemnify and hold harmless such
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Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Subject to the following sentence, if the Company
agrees to a settlement of an action or proceeding against an Indemnified Person
which does not involve any finding or admission of liability or wrongdoing on
the part of the Indemnified Person and stands ready, willing and able to pay
such settlement and the Indemnified Person refuses to settle, then the Indemni-
fied Person shall continue the defense at its own expense and the Company shall
be responsible to indemnify only the lesser of the amount of the settlement
accepted by the Company or the cost of the final disposition of the claim. The
Company will not, without the prior written consent of any Indemnified Person,
settle or compromise or consent to the entry of any judgment in or otherwise
seek to terminate any pending or threatened action, claim, suit or proceeding in
respect to which indemnification or contribution may be sought hereunder unless
such settlement, compromise, consent or termination includes an express
unconditional release of all Indemnified Persons from all liability arising out
of such action, claim, suit or proceeding.
(c) Each Holder, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors and officers, and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the 1934 Act, to the same extent as the
indemnity from the Company to each Indemnified Person set forth in Section 7(a),
but only (i) with respect to untrue statements, alleged untrue statements,
omissions or alleged omissions relating to such Holder or an Indemnified Person
who is such by reason of such person's relationship to such Holder, furnished in
writing by such Holder or such person to the Company expressly for use in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto; and (ii) with respect to any failure by such Holder to comply with the
prospectus delivery requirements under the Securities Act and the rules and
regulations thereunder. In case any action or proceeding shall be brought
against the Company or its officers or directors or any such controlling person
in respect of which indemnity may be sought against a Holder under the
provisions of this Section 7(c), such Holder shall have the rights and duties
given to the Company and each of the Company or its directors or its officers or
its controlling persons shall have the rights and duties given to each Holder
and other Indemnified Persons, under the terms of Section 7(b) above.
Notwithstanding anything contained herein, no Holder shall be liable for an
amount which is greater than the proceeds received by such Holder from the sale
of Registrable Securities.
(d) If the indemnification provided for under Section 7(a) or
Section 7(c) hereof is unavailable to an indemnified party thereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the applicable Holders on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the applicable Holders on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the
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omission to state a material fact relates to information supplied by the Company
or information supplied by the applicable Holder in writing for use in the
Registration Statement, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Subsection 11(f) of the Securities Act) or of gross negligence, willful
misconduct or bad faith shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation, gross negligence, willful,
misconduct or bad faith. Notwithstanding anything contained herein, no Holder
shall be liable for an amount which is greater than the proceeds received by
such Holder from the sale of Registrable Securities.
8. Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of SEC Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit the Holders to sell securities of the Company to the public without
registration, the Company agrees to timely file with the SEC all reports and
documents required to be filed by it under the Securities Act and the 1934 Act
and the rules and regulations promulgated thereunder, and to furnish to each
Holder, so long as such Holder owns any Registrable Securities, a copy of the
most recent annual or quarterly report of the Company, such other reports and
documents filed by the Company with the SEC, and such other information as may
be reasonably requested in availing the Holders of any rule or regulation of the
SEC which permits the selling of any such securities without registration.
9. Assignments of Registration Rights. The rights of a Holder
pursuant to this Agreement may be assigned by a Holder to transferees or
assignees of Registrable Securities provided that (i) the Company is furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; (ii) the transfer or assignment of such Registrable Securities has
been made in compliance with the Securities Act and applicable state securities
laws and, immediately following such transfer or assignment, the further
disposition of such Registrable Securities is restricted under the Securities
Act; and (iii) the notice provided in this Section 9 contains a written
agreement by the transferee or assignee to be bound by the terms and provisions
of this Agreement.
10. Miscellaneous.
(a) Notices required or permitted to be given hereunder shall be
in writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested, addressed (i) if
to the Company, at 275 Shoreline Drive, Redwood Shores, California 94065 with a
copy to Donald J. Bezahler, Esq., Baer Marks & Upham LLP, 805 Third Avenue, New
York, New York 10022; or (ii) if to a Holder, at the address set forth on the
signature pages of the Subscription Agreements, or at
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such other address as any such party furnishes by notice given in accordance
with this Section 10.
(b) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, will not operate as a waiver thereof.
(c) This Agreement shall be enforced, governed and construed in
all respects in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law applied in such State. In the
event that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof
which may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof.
(d) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by a writing executed by the Company and each of the
Holders. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon the Holders and the Company.
(e) Any person or entity is deemed to be a Holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall be entitled to act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(f) This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one instrument.
(g) The parties hereto agree that irreparable harm would occur
to the Holders in the event that any of the provisions of this Agreement were
not performed by the Company, and that money damages are an inadequate remedy
for breach of this Agreement because of the difficulty of ascertaining the
amount of damage that would be suffered by the Holders in the event that this
Agreement is not performed in accordance with its terms or conditions or is
otherwise breached. It is accordingly agreed that the Holders shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement by the
Holders and to enforce specifically the terms and provisions hereof in any court
of the United States or any state having jurisdiction, this being in addition to
any other remedy to which the Holders are entitled at law or in equity or
otherwise.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed on its behalf as of the date first set forth above.
COMMUNICATION INTELLIGENCE
CORPORATION
By:
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Philip S. Sassower
Chairman of the Finance Committee
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed on its behalf as of the date first set forth above.
COMMUNICATION INTELLIGENCE
CORPORATION
By:
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Philip S. Sassower
Chairman of the Finance Committee
By:
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Name:
Title:
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