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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
________________, 1999 is made and entered into by and among Interscience
Computer Corporation, a California corporation (the "Company"), and Camino
Software Systems, Inc., a California corporation ("Camino").
The parties to this Agreement, intending to be legally bound
hereby, agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" has the meaning ascribed to that term in Rule
12b-2 of the General Rules and Regulations promulgated under the Exchange Act.
"Asset Purchase Agreement" means an Asset Purchase Agreement
dated as of August ___, 1999, entered into between the Company and Camino.
"Common Stock" means the common stock of the Company.
"Demand Request" has the meaning ascribed to that term in
Section 3.1.
"Demand Registration" has the meaning ascribed to that term
in Section 3.1.
"Demand Stockholders" shall mean Camino.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Piggyback Registration" has the meaning ascribed to that
term in Section 3.2.
"Prospectus" means the Prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement and by all
other amendments, and supplements to such Prospectus, including post-effective
amendments, and all information incorporated by reference in such Prospectus.
"Registrable Securities" means any shares of Common Stock
held or acquired by a party to this Agreement by virtue of the Asset Purchase
Agreement, or any stock split or combination, stock dividend or similar event in
respect of any of the shares referred to in this definition; provided, however,
that shares of Common Stock that are Registrable Securities shall cease to be
Registrable Securities upon the sale thereof pursuant to an effective
Registration Statement or pursuant to Rule 144 (or successor rule) under the
Securities Act or upon, in the case of any holder thereof, shares of Common
Stock becoming saleable pursuant to Rule 144 without volume restrictions; and
provided, further that shares of Common Stock that are
EXHIBIT 10.3
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Registrable Securities shall continue to be Registrable Securities upon their
transfer as provided in Section 11 hereof in a private transaction exempt from
the registration requirements of the Securities Act to a person who becomes a
party to this Agreement by agreeing in writing to be bound by the terms of this
Agreement, such agreement to be in form and substance reasonably satisfactory to
the Company.
"Registration Expenses" means all registration and filing
fees, fees with respect to filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"), fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of one counsel for the underwriters or sellers of Registrable
Securities in connection with blue sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the managing underwriters or
holders of a majority of the Registrable Securities being sold may reasonably
designate), printing expenses and distribution expenses associated with the
preparation and distribution of any Registration Statement, any Prospectus, and
amendments or supplements thereto, all fees and expenses associated with the
listing of any Registrable Securities on any securities exchange or exchanges,
and fees and disbursements of counsel for the Company and its independent
certified public accountants, out-of-pocket expenses of underwriters customarily
paid by the issuer to the extent provided for in any underwriting agreement (but
specifically excluding any Selling Expenses).
"Registration Statement" means any Registration Statement of
the Company filed under the Securities Act, including the Prospectus forming a
part thereof, amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits to and all information
incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations thereunder, all as
the same shall be in effect at the time.
"Selling Expenses" means, with respect to any holder of
Registrable Securities, all underwriting discounts, selling commissions and
stock transfer or documentary stamp taxes, if any, applicable to any Registrable
Securities registered and sold by such holder, and all fees and disbursements of
any counsel for such holder (other than any counsel fees expressly constituting
a Registration Expense as defined in this Agreement).
"Underwritten Offering" means an offering registered under the
Securities Act in which securities are sold to an underwriter, whether on a
"firm commitment", "best efforts" or other basis, for reoffering to the public.
2. Securities Subject to this Agreement. The only securities
entitled to the benefits of this Agreement are the Registrable Securities.
3. Registration of Registrable Securities.
3.1 Demand Registration.
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(a) Demand. Subject to the other provisions of this Agreement,
and provided that the Company is then eligible to use Form S-3 (or similar short
form) for the resale of Registrable Securities, any Demand Stockholder shall
have the right, exercisable by making a written request (a "Demand Request") to
the Company (which request shall specify the aggregate number of shares of
Registrable Securities requested to be registered), to require that the Company
effect the registration in accordance with the provisions of the Securities Act
with respect to the resale of any of the Registrable Securities held by such
Demand Stockholder. Upon receipt of the Demand Request, the Company shall use
its best efforts to effect, at the earliest practicable date, the registration
(a "Demand Registration") under the Securities Act of (i) the Registrable
Securities that the Company has been so required to register by such Demand
Stockholder, and (ii) all other Registrable Securities that the Company has been
requested to register by the Holders thereof by written request given to the
Company within 15 days after the receipt of such written notice by the Company,
in each case, to provide for public resale thereof.
(b) Effective Registration Statement. A registration requested
pursuant to this Section 3.1 shall not be deemed to have been effected unless a
Registration Statement with respect thereto has become effective; provided,
however, that if, after a Demand Registration has become effective, the offering
of Registrable Securities pursuant thereto is suspended, blocked by any stop
order, injunction or other order of the SEC or any governmental agency or court,
or withdrawn (except a Demand Registration withdrawn under Section 6(a)), such
Demand Registration will be deemed not to have been.
(c) Selection of Underwriters. The Company shall have the sole
right to select, after consultation with the Demand Stockholders, the
underwriter or underwriters, if any, of the Registrable Securities so to be
registered.
(d) Priority in Requested Registration. If the managing
underwriter, if any, of the Demand Registration advises the Company in writing
that, in its opinion, the number of shares of Registrable Securities and other
securities of the Company requested to be included in such offering exceeds the
number that can be sold in such offering at the offering price without
materially affecting the offering price of any such securities, the Company
shall include in such registration (1) first, the Registrable Securities
requested by the Demand Stockholders to be included in the Demand Registration
pursuant to Section 3.1(a) pro rata among such Demand Stockholders on the basis
of the total number of shares of Registrable Securities requested to be included
in such Demand Registration; and (2) second, to the extent that such securities
of the Company may be included without materially affecting the offering price
of the Registrable Securities referred to in clause (1), in the opinion of such
managing underwriter, any other securities of the Company held by persons having
rights to participate in such Demand Registration that are non-preferential to
the Demand Stockholders in accordance with their agreements with respect
thereto.
(e) Limitations on Demand Registration. Notwithstanding the
foregoing, the Company shall not be required to file a Registration Statement
for a Demand Registration under any of the following circumstances:
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(i) within 60 days prior to the estimated date of filing and
180 days after the effectiveness (within the meaning of Section 3.1(b)) of a
Registration Statement filed in connection with an underwritten public offering
of securities of the Company;
(ii) if the Company has effected two Demand Registrations
pursuant to this Section 3.1;
(iii) the Company promptly delivers written notice ("Prior
Registration Notice") to the Demand Stockholder(s) making the Demand Request
that it has filed and is using reasonable efforts to have declared effective, or
at the time of receipt of the Demand Request is required to file, or has
delivered a Piggyback Notice (as defined in Section 3.2) with respect to, a
Registration Statement pursuant to Section 3.2 ("Prior Registration Rights");
provided, however, that the Company may postpone the filing of a Registration
Statement pursuant to a Demand Request for a period of no longer than (1) 180
days after the effective date of the Registration Statement filed pursuant to
the Prior Registration Rights, if such Registration Statement was filed before
the date of delivery of the Prior Registration Notice or within 60 days
thereafter and, in either case, becomes effective within 120 days after the date
of delivery of the Prior Registration Notice; (2) 120 days after the date of
delivery of the Prior Registration Notice, if such Registration Statement was
filed before the date of delivery of the Prior Registration Notice or within 60
days thereafter but, in either case, does not become effective within such
120-day period; or (3) 60 days after the date of delivery of the Prior
Registration Notice, if such Registration Statement was not filed before the
date of delivery of the Prior Registration Notice and is not filed within 60
days thereafter; or
(iv) if there exists at the time, material non-public
information involving the Company, which, in the reasonable opinion of the Board
of Directors, should not be disclosed, any other provisions of this Agreement to
the contrary notwithstanding, the Company's obligation to file a Registration
Statement, or cause such Registration Statement to become and remain effective
(whether under this Section 3.1 or under any other provision of this Agreement),
shall be suspended for a period not to exceed 90 days (and for a period not
exceeding, in the aggregate, 180 days in any 24-month period);
(v) the Company has effected a Demand Registration pursuant
to this Section 3.1 within the previous nine (9) months;
(vi) if the Company shall not then qualify for registration on
Form S-3 (or any successor "short form" registration statement); or
(vii) if the Company shall be unable, after consultation with
the Demand Stockholders, to select an underwriter or underwriters to underwrite
the Demand Registration which is reasonably acceptable to the Company who
otherwise have preferential registration rights.
3.2 Piggyback Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register the offering and sale of shares of Common Stock
under the Securities Act by registration on any form other than Forms S-4 or S-8
(or any successor forms thereto) whether or
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not for sale for its own account, it shall each such time give prompt written
notice ("Piggyback Notice") to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 3.2. Upon the
written request of any such holder (a "Requesting Holder") received by the
Company within 30 days after the giving of any Piggyback Notice (which request
shall specify the Registrable Securities intended to be disposed of by such
Requesting Holder and the intended method of such disposition), the Company
shall use all reasonable efforts to include in such registration ("Piggyback
Registration") all Registrable Securities that the Requesting Holders have so
requested be included in such Piggyback Registration to permit the disposition
by such Requesting Holders of such Registrable Securities; provided that (i) if
such registration involves an underwritten public offering, all holders of
Registrable Securities requesting to be included in the Company's registration
must sell their Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to the Company; and (ii) if,
at any time after giving notice of its intention to register any securities
pursuant to this Section 3.2(a) and prior to the effective date of the
Registration Statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to all holders of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration No registration effected under
this Section 3.2 shall relieve the Company of its obligations to effect
registrations upon request under Section 3.1.
(b) Priority in Piggyback Registrations. If a Piggyback
Registration is an Underwritten Offering and the managing underwriter thereof
advises the Company in writing that, in its opinion, the number of shares of
Registrable Securities requested or proposed to be included in such offering
exceeds the number that can be sold in such offering without materially
affecting the offering price of any such securities, the Company shall include
in such registration (1) first, to the extent that such securities of the
Company may be included in such registration without materially affecting the
offering price thereof, in the opinion of such managing underwriter, (A) if such
registration is initiated by the Company proposing to register any of its Common
Stock, such Common Stock proposed to be sold by the Company and (B) the
securities of the Company held by persons (other than the holders of Registrable
Securities with respect to Registrable Securities) which have been duly
requested to be included in such Piggyback Registration in accordance with the
agreements with respect to such registration rights; and (2) second, to the
extent that such Registrable Securities may be included in such registration
without materially affecting the offering price of the securities referred to in
clause (1), in the opinion of such managing underwriter, the Registrable
Securities requested by the holders to be included in such Piggyback
Registration pursuant to Section 3.2 (a) and any other securities of the Company
held by persons other than holders having rights to participate in said
Piggyback Registration that are non-preferential to the holders of the
Registrable Securities pro rata among all such holders on the basis of the total
number of securities of the Company, including Registrable Securities, requested
by each such holder to be included therein.
4. Hold-Back Agreements. During the term of this Agreement,
each holder of Registrable Securities shall if requested by the managing
underwriter or underwriters in an Underwritten Offering and provided the Company
is then in compliance with the terms of this Agreement, agree not to effect any
public sale or distribution of securities of the Company of the same class as
the securities included in such Registration Statement, including a sale
pursuant to
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Rule 144 under the Securities Act, except as part of such underwritten
registration, during the 30-day period prior to, and during a period of up to
120 days beginning on, the closing date of each Underwritten Offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriter or underwriters.
5. Registration Procedures.
In connection with the Company's obligations under Section 3,
the Company shall use its best efforts to effect such registration to permit the
sale of such Registrable Securities in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company shall as
expeditiously as practicable:
(a) prepare and file with the SEC under the Securities Act a
Registration Statement with respect to such Registrable Securities which shall
state that the Registrable Securities are covered thereby, and use its best
efforts to cause such Registration Statement to become effective and to remain
effective; provided, however, that the Company may discontinue any registration
of Registrable Securities being effected pursuant to Section 3.2 at any time
before the effective date of the Registration Statement relating thereto;
(b) prepare and file with the SEC such amendments and
supplements, if any, to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to (1) keep such Registration Statement
effective until the earlier of (a) 90 days after the effectiveness thereof or
(b) the completion of the distribution under such Registration Statement, and
(2) comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of such Registrable Securities and
each underwriter (if any) such number of copies of such Registration Statement
(including exhibits), each amendment and supplement thereto, the Prospectus
included in such Registration Statement or filed with the SEC (including each
preliminary Prospectus), and each amendment and supplement thereto as such
seller and underwriter may reasonably request to facilitate the disposition of
the Registrable Securities owned by such seller and covered by such Registration
Statement;
(d) use its reasonable efforts to (1) register or qualify such
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions as any seller of such Registrable Securities or the managing
underwriter (if any) may reasonably request; (2) keep such registrations or
qualifications in effect for so long as such Registration Statement is in
effect; and (3) take any and all other reasonable actions that may be necessary
or appropriate to enable each seller of Registrable Securities or other
securities of the Company covered by such Registration Statement and each
underwriter (if any) to consummate the disposition in such jurisdictions of the
relevant Registrable Securities and other securities of the Company; provided.
however, that the Company shall not be required to (a) qualify generally to
transact business as a foreign corporation in any jurisdiction where it would
not otherwise be required to qualify but for the requirements of this Section 5,
(b) subject itself to taxation in any such jurisdiction; or (c) consent to
general service of process in any jurisdiction;
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(e) (1) at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act, notify each seller of
Registrable Securities covered by a Registration Statement when it becomes aware
of the occurrence of any event as a result of which the Prospectus (as then
amended or supplemented) contains any untrue statement of a material fact or
omits any fact necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading; and (2) at the request
of any such seller, as promptly as practicable thereafter, prepare in sufficient
quantities and furnish to such seller and each underwriter (if any) a reasonable
number of copies of a Prospectus supplemented or amended so that, as thereafter
delivered to the offerees or purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state any fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading;
(f) use its reasonable efforts to cause all such Registrable
Securities covered by such Registration Statement to be listed or approved for
trading on any securities exchange or inter-dealer quotation system, if any, on
which similar securities of the Company are then listed or approved for trading,
if the listing of such Registrable Securities is then permitted under the rules
of such exchange or inter-dealer quotation system;
(g) enter into and perform its obligations under customary
agreements relating to the registration, including an underwriting agreement in
customary form;
(h) subject to the execution of confidentiality agreements
customary for transactions of this type, in form and substance satisfactory to
the Company, (1) make reasonably available for inspection by any seller of such
Registrable Securities, any underwriter (if any) and any legal counsel,
accountant or other agent retained by any such seller or underwriter, all
financial and other records, relevant corporate documents, and properties of the
Company, (2) cause the Company's directors, officers, employees, counsel and
independent public accountants to supply all information reasonably requested
by, and to respond to inquiries from, any such seller, underwriter, legal
counsel, attorney, accountant or agent in connection with such Registration
Statement, in each instance to the extent that such information is reasonably
necessary to satisfy any of its obligations under applicable law.;
(i) with respect to Underwritten Offerings, use its reasonable
efforts to obtain an appropriate opinion from counsel for the Company and a
"cold comfort" letter from then Company's independent public accountants, each
in customary form and covering such matters of the type customarily covered by
opinions of counsel and cold comfort letters in similar registrations;
(j) promptly notify each selling holder of Registrable
Securities and each managing underwriter (if any) and, upon request by any such
person, confirm such advice in writing, (1) when such Registration Statement,
the Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to such Registration Statement or any post-effective
amendment thereto, when the same has become effective, (2) of the issuance by
the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceeding for such purpose, or (3) of the
receipt by the Company of any
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notification with respect to the suspension of the registration or qualification
of such Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(k) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement or any
post-effective amendment thereto.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing; provided, however, that such
information shall be used by the Company only to the extent necessary for, and
in connection with, such registration.
Each holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(e)(1) hereof, such holder shall forthwith discontinue
disposition of such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
5(e)(2), or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods regarding the maintenance
of the Registration Statement in Section 3 shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 5(e)(1) to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 5(e)(2) or the Advice.
6. Withdrawal.
(a) If any holder participating in a registration hereunder
disapproves of the terms of any offering, the sole remedy of such holder shall
be, in its discretion, to withdraw such holder's Registrable Securities and
other securities of the Company therefrom by giving written notice to the
Company and any managing underwriter (if any). The holder's Registrable
Securities and other securities of the Company so withdrawn from the offering
also shall be withdrawn from registration. If the holders participating in such
registration withdraw all Registrable Securities from the offering, the Company
may withdraw the registration, and if such registration was commenced pursuant
to a Demand Request, such registration shall nevertheless be counted as a Demand
Registration effected hereunder; provided, however, that such registration shall
not be so counted if the withdrawal was based on the Company's failure to comply
in any material respect with its obligations hereunder.
(b) If as a result of the priority provisions of Sections
3.1(d) and 3.2(b), any holder of Registrable Securities is not entitled to
include all of such holder's Registrable Securities in a registration that such
holder has requested to be included, then after the delivery to such holder of
notice thereof from the Company, such holder may elect to withdraw his request
to include such holder's Registrable Securities in such registration
("Withdrawal
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Election"); provided, however, that a Withdrawal Election shall be irrevocable
and, after making a Withdrawal Election, a holder shall no longer have any right
to include such holder's Registrable Securities in the registration as to which
such Withdrawal Election was made.
7. Expenses of Registration. All Registration Expenses
incurred in connection with any registration in accordance with Section 3 shall
be borne by the Company. All Selling Expenses relating to Registrable Shares
registered on behalf of any person shall be borne by such person.
8. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, with respect to any Registration Statement filed by
it, to the fullest extent permitted by law, each holder who is a seller of
Registrable Securities covered by such Registration Statement, its officers,
directors, employees, agents and general or limited partners, and each other
person, if any, who controls such holder within the meaning of the Securities
Act (collectively, "Holder Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several, (including reasonable fees
of counsel and any amounts paid in settlement effected with the Company's
consent, which consent shall not be unreasonably withheld) to which any such
Holder Indemnified Party may become subject under the Securities Act, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) are caused by (1) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement in which such Registrable Securities were included as
contemplated hereby or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (2) any untrue statement or alleged untrue statement of
a material fact contained in any, preliminary, final or summary Prospectus,
together with the documents incorporated by reference therein (as amended or
supplemented if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (3) any violation by the Company of any federal or
state law, rule or regulation applicable to the Company relating to action of or
inaction by the Company in connection with any such registration; and in each
such case, the Company shall reimburse each such Holder Indemnified Party for
any reasonable legal or any other expenses incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability,
expense, action or proceeding; provided, however, that the Company shall not be
liable to any such Holder Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability or expense (or action or proceeding,
whether commenced or threatened, in respect thereof) arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or amendment thereof or supplement
thereto or in any such preliminary, final or summary Prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder Indemnified Party relating to such Holder Indemnified
Party expressly for use in the preparation thereof, and provided, further, that
the Company shall not be liable to any such Holder Indemnified Party with
respect to any preliminary Prospectus to the extent that any such loss, claim,
damage, liability or expense of such Holder Indemnified Party results from the
fact
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that such Holder Indemnified Party sold Registrable Securities to a person to
whom there was not sent or given, at or before the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
or of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference) if the Company has, prior to the confirmation or
completion of such sale, furnished copies thereof to such Holder Indemnified
Party in compliance with Section 5 and the loss, claim, damage, liability or
expense of such Holder Indemnified Party results from an untrue statement or
omission of a material fact contained in such preliminary Prospectus which was
corrected in the Prospectus (or the Prospectus as amended or supplemented). Such
indemnity and reimbursement of expenses obligations shall remain in full force
and effect regardless of any investigation made by or on behalf of the Holder
Indemnified Parties and shall survive the transfer of such securities by such
holder.
(b) Indemnification by Holders. Each holder of Registrable
Securities participating in any registration hereunder shall severally and not
jointly indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors, officers, employees and agents, and each person who
controls the Company (within the meaning of the Securities Act) (collectively,
"Company Indemnified Parties") against all losses, claims, damages, liabilities
and expenses, joint or several (including reasonable fees of counsel and any
amounts paid in settlement effected with such holder's consent, which consent
shall not be unreasonably withheld) to which any Company Indemnified Party may
become subject under the Securities Act, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions or proceedings
in respect thereof) are caused by (1) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement in which
such holder's Registrable Securities were included or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary Prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading to the extent, but only to the extent, in the cases described in
clauses (1) and (2), that such untrue statement or omission is contained in any
information furnished in writing by such holder to the Company expressly for use
in the preparation thereof, provided, however, that the aggregate amount which
any such holder shall be required to pay pursuant to this Section 8(b) shall be
limited to the dollar amount of proceeds received less expenses associated with
the sale of Registrable Securities and other securities of the Company by such
holder upon the sale of the Registrable Securities and other securities of the
Company pursuant to the Registration Statement giving rise to such claim. Such
indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company Indemnified Parties (except as
provided above) and shall survive the transfer of such securities by such
holder.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under Section 8(a) or 8(b) of written notice of
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing with respect to which a claim for indemnification may be made
pursuant to this Section 8, such indemnified party shall, if a claim
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in respect thereto is to be made against an indemnifying party, give written
notice to the indemnifying party of the threat or commencement thereof;
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. If any such claim or action referred to under Section
8(a) or 8(b) is brought against any indemnified party and it then notifies the
indemnifying party of the threat or commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such claim or action, the indemnifying
party shall not be liable to such indemnified party under this Section 8 for any
legal expenses of counsel or any other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation unless (i) the indemnifying party has failed to assume
the defense of such claim or action or to employ counsel reasonably satisfactory
to such indemnified party or (ii) in the reasonable judgment of any indemnified
party a conflict of interest is likely to exist, based on the written opinion of
counsel, between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay reasonable fees and expenses of such additional counsel. The
indemnifying party shall not be required to indemnify the indemnified party with
respect to any amounts paid in settlement of any action, proceeding or
investigation entered into without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld. No indemnifying party
shall consent to the entry of any judgment or enter into any settlement without
the consent of the indemnified party unless (1) such judgment or settlement does
not impose any obligation or liability upon the indemnified party other than the
execution, delivery or approval thereof, and (2) such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a full release and discharge from all
liability in respect of such claim for all persons that may be entitled to or
obligated to provide indemnification or contribution under this Section 8.
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) referred to in Section 8(a) or 8(b) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other in connection with the statements,
omissions, actions or inactions which resulted in such losses, claims, damages,
liabilities or expenses. The relative fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party, any action or
inaction by any such party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement, omission,
action or inaction. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) pursuant to this Section 8(d) shall be deemed to
include any reasonable legal or other expenses incurred by such indemnified
party in connection with investigating or defending any such action or claim
(which shall be
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limited as provided in Section 8(c) if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof) which is
the subject of this Section 8(d). 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. Promptly after receipt by an indemnified party
under this Section 8(d) of written notice of the commencement of any action,
suit, proceeding, investigation or threat thereof made in writing with respect
to which a claim for contribution may be made against an indemnifying party
under this Section 8(d), such indemnified party shall, if a claim for
contribution in respect thereto is to be made against an indemnifying party,
give written notice to the indemnifying party in writing of the commencement
thereof (if the notice specified in Section 8(c) has not been given with respect
to such action); provided, however, that the failure to so notify the
indemnifying party shall not relieve it from any obligation to provide
contribution which it may have to any indemnified party under this Section 8(d)
except to the extent that the indemnifying party is actually prejudiced by the
failure to give notice. Notwithstanding anything in this Section 8(d) to the
contrary, no holder of Registrable Securities participating in any registration
hereunder shall be required pursuant to this Section 8(d) to contribute any
amount which exceeds the dollar amount of the proceeds received less expenses
associated with the sale of Registrable Securities and other securities of the
Company by such holder from the sale of Registrable Securities and other
securities of the Company in the offering to which the losses, claims, damages,
liabilities or expenses of the indemnified parties relate.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
If indemnification is available under this Section 8, the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in Sections 8(a) and 8(b), without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 8(d). The provisions of this Section
8(d) shall be in addition to any other rights to indemnification or contribution
which any indemnified partner may have pursuant to law or contract, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any indemnified party, and shall survive the transfer of securities by any such
party.
(e) Indemnification and Contribution of Underwriters. In
connection with any Underwritten Offering contemplated by this Agreement which
includes Registrable Securities, the Company and all sellers of Registrable
Securities included in any Registration Statement shall agree to customary
provisions for indemnification and contribution (consistent with the other
provisions of this Section 8) in respect of losses, claims, damages, liabilities
and expenses of the underwriters of such offering.
9. Current Public Information. With a view to making available
the benefits of certain rules and regulations of the SEC which may permit the
sale of Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
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(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act after the Company
becomes subject to the reporting requirements of such act; and
(b) furnish to any holder of Registrable Securities, during
the term of this Agreement, forthwith upon request (i) if true, a written
statement by the Company that it has complied with the current public
information and reporting requirements of Rule 144 under the Securities Act and
the Exchange Act to which it is subject and (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company.
10. Participation in Underwritten Registrations. In the case
of any underwritten registration under Section 3.1, or in the case of a
registration under Section 3.2. if the Company determines to enter into an
underwriting agreement in connection therewith, (1) all shares of Registrable
Securities or other Securities of the Company to be included in such
registration shall be subject to such underwriting agreement, which shall be in
customary form, and (2) no person may participate in any such registration
unless such person (a) agrees to sell such person's securities on the basis
provided in such underwriting arrangement and (b) completes and executes all
questionnaires, powers-of-attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
11. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities and keep information available
hereunder may be assigned by Camino to any shareholder of Camino, or by such
shareholder to such shareholder's transferees or assignees; provided, that the
Company is given written notice by such shareholder at any time of or within a
reasonable time after said transfer, stating the name and address of said
shareholder, transferee or assignee and identifying the securities with respect
to which such registration rights are being assigned and the transferee or
assignee agrees in writing to be bound by the terms of this Agreement, such
agreement to be in form and substance reasonably satisfactory to the Company.
12. Representations and Warranties. The Company represents and
warrants to Camino as follows:
(a) The execution, delivery and performance of the
Agreement have been duly authorized by the Company.
(b) This Agreement constitutes a valid and binding obligation
of the Company enforceable in accordance with the terms, except as
enforceability thereof may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditor's rights and by general principles of equity.
(c) The execution, delivery and performance by the Company of
this Agreement do not and will not require the authorization, consent, permit or
approval of, or declaration to or filing with, any court, regulatory or public
body or governmental authority not already obtained or made, or result in the
creation of any lien, security interest, change or encumbrance upon the capital
stock of the Company.
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13. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided
herein, no alteration, modification, amendment, change or waiver of any
provision of this Agreement shall be effective or binding on any party hereto
unless the same is in writing and is executed by the Company, and the holders of
at least a majority of the Registrable Securities then outstanding; provided,
however, that with respect to a particular Registration Statement filed pursuant
to Section 3, a waiver or consent to departure from the provisions of this
Agreement regarding only such Registration Statement and the offering covered
thereby may be given by the holders of not less than a majority of the
Registrable Securities covered by such Registration Statement, except that no
such waiver or consent shall operate to affect adversely the rights hereunder of
any other holder of Registrable Securities.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities as set forth on
the signature page hereto or, at the most current address given by such holder
to the Company; and
(ii) if to the Company:
Interscience Computer Corporation
3236 Colodny Drive, Suite 100
Agoura Hills, CA 90301
Attn: President
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day if timely delivered to
a courier guaranteeing overnight delivery.
(c) Term. This Agreement shall terminate and cease to be of
any further force or effect on the fifth anniversary of the date of this
Agreement; provided, however, that the indemnification and contribution rights
and obligations shall not terminate and shall continue forever; and provided,
further, that with respect to any particular party to this Agreement, this
Agreement shall terminate and cease to be of any further force or effect on the
first date which that party ceases to hold any Registrable Securities.
(d) Successors and Assigns. The provisions hereof shall inure
to the benefit of, and be binding upon, the successors, permitted assigns,
heirs, executors and administrators of the parties hereto, provided that any
such successors, permitted assign, heirs, executors and administrators shall
have agreed in writing to be bound by the terms and conditions of this
Agreement.
(e) Remedies. Each party hereto acknowledges that in the
event of any breach of this Agreement by such party, the other parties hereto
(1) would be irreparably and immediately harmed by such breach, (2) could not be
made whole by monetary damages, and (3) shall be
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entitled to temporary and permanent injunctions (or their functional
equivalents) to prevent any such breach and/or to compel specific performance
with this Agreement, in addition to all other remedies to which such parties may
be entitled at law or in equity.
(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 agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed in Delaware without regard to principles of
conflicts of laws.
(h) Severability. Each provision of this Agreement shall be
considered severable, and if for any reason any provision that is not essential
to the effectuation of the basic purposes of the Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable under existing or
future applicable law, such invalidity shall not impair the operation of or
affect those provisions of this Agreement that are valid. In that case, this
Agreement shall be construed so as to limit any term or provision so as to make
it enforceable or valid within the requirements of any applicable law, and in
the event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no representations,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company hereby.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter and cannot be changed or terminated
orally.
(j) Construction. As used in this Agreement, unless the
context otherwise requires (i) references to "Sections" are to sections of this
Agreement, (ii) "hereof', "herein", "hereunder" and comparable terms refer to
this Agreement in its entirety and not to any particular part of this Agreement,
(iii) the singular includes the plural and the masculine, feminine and neutral
gender includes the other, (iv) "including" or "Includes" shall be deemed to be
followed by the phrase "without limitation", and (v) headings of the various
Sections and subsections are for convenience of reference only and shall not be
given any effect for purposes of interpreting this Agreement.
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This Agreement is executed and delivered by the parties hereto to be
effective as of the date first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
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Name:
Title:
CAMINO SOFTWARE SYSTEMS, INC.
By:
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Name:
Title:
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