REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated the 8th day of February, 1999,
between the entities listed on Schedule A attached hereto (referred to as a
the "Investors"), CARDINAL CAPITAL MANAGEMENT, INC. (the "Placement Agent",
and together with the Investors is also hereinafter referred to as the
"Holder" or "Holders") located at 3340 Peachtree Road, N.E., Suite 620,
Atlanta, Georgia 30326, and WORDCRUNCHER INTERNET TECHNOLOGIES, INC., a
corporation incorporated under the laws of the State of Nevada, and having its
principle place of business at 12450 South 405 East, Suite B, Draper, Utah
84020, (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement and from time to time thereafter, the Investors are purchasing from
the Company, pursuant to the Series A Preferred Stock Purchase Agreement dated
the date hereof (the "Purchase Agreement"), shares of Preferred Stock and
Warrants (hereinafter collectively referred to as the "Securities" of the
Company); All capitalized terms not hereinafter defined shall have that
meaning assigned to them in the Purchase Agreement; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement and from time to time thereafter, the Company shall issue Warrants
(in addition to fees set forth in the Purchase Agreement) to the Placement
Agent, in return for services rendered, from time to time as provided in the
Purchase Agreement; and
WHEREAS, the Company desires to grant to the Holders the registration rights
set forth herein with respect to the securities set forth in the Purchase
Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" means the Underlying Shares, the Additional Shares, the
Reset Shares, and the Warrant Shares; provided, however, that with respect to
any particular Registrable Security, such security shall cease to be a
Registrable Security when, as of the date of determination, (i) it has been
effectively registered under the Securities Act of 1933, as amended (the "1933
Act") and disposed of pursuant thereto, (ii) registration under the 1933 Act
is no longer required for the immediate public distribution of such security
as a result of the provisions of Rule 144 promulgated under the 1933 Act, or
(iii) it has ceased to be outstanding. The term "Registrable Securities"
means any and/or all of the securities falling within the foregoing definition
of a Registrable Security. In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure
affecting the Common Stock, such adjustment shall be made in the definition of
Registrable Security as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Section.
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Section 2. Restrictions on Transfer. The Holders acknowledge and
understand that prior to the registration of the Registrable Securities as
provided herein, the Registrable Securities and the Securities are "restricted
securities" as defined in Rule 144 promulgated under the Act. The Holders
understand that no disposition or transfer of the Registrable Securities or
the Securities may be made by the Holders in the absence of (i) an opinion of
counsel to the Holders that such transfer may be made without registration
under the 1933 Act, or (ii) such registration.
Section 3. Registration Rights.
(a) The Company agrees that it will prepare and file
with the Securities and Exchange Commission ("SEC"), on or prior to April 30,
1999, a registration statement (on Form SB-2, or other appropriate
registration statement) under the 1933 Act (the "Registration Statement"), at
the sole expense of the Company (except as provided in Section 3(c) hereof),
in respect of all holders of Registrable Securities, so as to permit a public
offering and sale of the Registrable Securities under the Act. The Company
shall use its best efforts to cause the Registration Statement to become
effective on or before June 30, 1999. The number of shares of Common Stock
designated in the Registration Statement to be registered shall be not less
than (i) 200% of the number of Underlying Shares that would be required if all
of the Preferred Stock were issued and converted on the Trading Day
immediately preceding the filing of the Registration Statement, plus (ii) 100%
of the number of Warrant Shares issuable assuming all of the Warrants had been
issued pursuant to the Purchase Agreement. The Company agrees that it will
only include in the Registration Statement, in addition to the shares referred
to in the preceding sentence, the shares contained in Schedule 3 (a) annexed
hereto.
(b) The Company will maintain the Registration
Statement, or post-effective amendment filed under this Section 3 hereof
current under the 1933 Act until the earlier of (i) the date that all of the
Registrable Securities have been sold pursuant to the applicable Registration
Statement, (ii) the date the holders thereof receive an opinion of counsel
that the Registrable Securities may be sold under the provisions of Rule 144
(without limitation) or (iii) five years after the Subscription Date.
(c) All fees, disbursements and out-of-pocket expenses
and costs incurred by the Company in connection with the preparation and
filing of the Registration Statement under subparagraph 3(a) and in complying
with applicable securities and blue sky laws (including, without limitation,
all attorneys' fees) shall be borne by the Company. The Holders shall bear
the cost, pro rata, of underwriting discounts and commissions, if any,
applicable to the Registrable Securities being registered and the fees and
expenses of its counsel. The Company shall qualify any of the securities for
sale in such states as such Holder reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. The Company at
its expense will supply the Holders with copies of the Registration Statement
and the prospectus or offering circular included therein and other related
documents in such quantities as may be reasonably requested by the Holders.
(d) The Company shall not be required by this Section 3
to include a Holder's Registrable Securities in any Registration Statement
which is to be filed if, in the opinion
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of counsel for both the Holder and the Company (or, should they not agree, in
the opinion of another counsel experienced in securities law matters
acceptable to counsel for the Holder and the Company) the proposed offering or
other transfer as to which such registration is requested is exempt from
applicable federal and state securities laws and would result in all
purchasers or transferees obtaining securities which are not "restricted
securities", as defined in Rule 144 under the 1933 Act.
(e) In the event the Registration Statement to be filed
by the Company pursuant to Section 3(a) above is not filed with the SEC on or
before April 30, 1999 and/or the Registration Statement is not declared
effective by the SEC on or before June 30, 1999, then the Company will pay the
Holders (pro rated on a daily basis), as liquidated damages for such failure
and not as a penalty, two percent of the purchase price of the then
outstanding Securities for every 30 calendar day period until the Registration
Statement has been filed and/or declared effective. Such payment of the
liquidated damages shall be made to the Holders in cash, immediately upon
demand, provided, however, that the payment of such liquidated damages shall
not relieve the Company from its obligations to register the Registrable
Securities. If the Company does not remit the damages to the Holder as set
forth above, the Company will pay the Holders reasonable costs of collection,
including attorneys fees, in addition to the liquidated damages. The
registration of the Securities pursuant to this provision shall not affect or
limit Holder's other rights or remedies as set forth in this Agreement.
(f) The Company agrees that it shall declare the
Registration Statement effective within three Business Days after being
informed by the SEC that it may do so. The Company also agrees that it shall
respond to any questions and/or comments from the SEC which relate to the
Registration Statement within five Business Days of receipt of such question
or comment.
Section 4. Cooperation with Company. Each of the Holders will
cooperate with the Company in all respects in connection with this Agreement,
including timely supplying all information reasonably requested by the Company
and executing and returning all documents reasonably requested in connection
with the registration and sale of the Registrable Securities.
Section 5. Registration Procedures. If and whenever the Company
is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Act, the Company
shall (except as otherwise provided in this Agreement), as expeditiously as
possible:
(a) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
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statement effective and to comply with the provisions of the Act with respect
to the sale or other disposition of all securities covered by such
registration statement whenever the Holder shall desire to sell or otherwise
dispose of the same (including prospectus supplements with respect to the
sales of securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Act);
(b) furnish to each Holder such numbers of copies of a
summary prospectus or other prospectus, including a preliminary prospectus or
any amendment or supplement to any prospectus, in conformity with the
requirements of the Act, and such other documents, as such Holder may
reasonably request in order to facilitate the public sale or other disposition
of the securities owned by such Holder;
(c) register and qualify the securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Holders shall reasonably request, and do any and all
other acts and things which may be necessary or advisable to enable each
Holder to consummate the public sale or other disposition in such jurisdiction
of the securities owned by such Holder, except that the Company shall not for
any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or to file
therein any general consent to service of process;
(d) list such securities on the Principal Market on
which any securities of the Company are then listed, if the listing of such
securities is then permitted under the rules of such Principal Market;
(e) enter into and perform its obligations under an
underwriting agreement, if the offering is an underwritten offering, in
usual and customary form, with the managing underwriter or underwriters of
such underwritten offering;
(f) notify each Holder of Registrable Securities
covered by the Registration Statement any time when a prospectus relating
thereto covered by the Registration Statement is required to be delivered
under the Act, and of the happening of any event of which it has knowledge 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 in the light of the circumstances then
existing.
Section 6. Information by Holder. Each Holder of Registrable
Securities included in any registration statement shall furnish to the Company
such information regarding such Holder and the distribution proposed by such
Holder as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section.
Section 7. Assignment. The rights granted the Holders under this
Agreement shall not be assigned without the written consent of the Company,
which consent shall not be unreasonably withheld. This Agreement is binding
upon and inures to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns.
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Section 8. Termination of Registration Rights. The rights granted
pursuant to this Agreement shall terminate as to each Holder (and permitted
transferee under Section 7 above) upon the occurrence of any of the following:
(a) all such Holder's securities subject to this
Agreement have been registered;
(b) all of such Holder's securities subject to this
Agreement may be sold without such registration pursuant to Rule 144
promulgated by the SEC pursuant to the Securities Act;
(c) all of such Holder's securities subject to this
Agreement can be sold pursuant to Rule 144(k) without volume limitation; or
(d) five years from the issuance of the Registrable
Securities.
Section 9. Indemnification.
(a) In the event of the filing of any Registration
Statement with respect to Registrable Securities pursuant to Section 3 hereof,
the Company agrees to indemnify and hold harmless the Holders, and each
officer, director of the Holders or person, if any, who controls the Holders
within the meaning of the Securities Act ("Distributing Holders") against any
losses, claims, damages or liabilities, joint or several (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of
defense and investigation and all attorneys' fees), to which the Distributing
Holders may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any such Registration Statement or
any related preliminary prospectus, final prospectus, offering circular,
notification or amendment or supplement thereto, or arise out of or are based
upon 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; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, preliminary
prospectus, final prospectus, offering circular, notification or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by the Distributing Holders, specifically
for use in the preparation thereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) In the event of the filing of any Registration
Statement with respect to Registrable Securities pursuant to Section 3 hereof,
each Distributing Holder agrees that it will indemnify and hold harmless the
Company, and each officer, director of the Company or person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities (which shall, for all purposes of this
Agreement, include, but not be limited to, all costs of defense and
investigation and all attorneys' fees) to which the Company or any such
officer, director or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
a Registration Statement, requested by such Distributing Holder, or any
related preliminary prospectus, final prospectus, offering circular,
notification or amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
Registration Statement, preliminary prospectus, final prospectus, offering
circular, notification or amendment or supplement thereto in reliance upon,
and in conformity with, written information furnished to the Company by such
Distributing Holder, specifically for use in the preparation thereof and,
provided further, that the indemnity agreement contained in this Section 9(b)
shall not inure to the benefit of the Company with respect to any person
asserting such loss, claim, damage or liability who purchased the Registrable
Securities which are the subject thereof if the Company failed to send or give
(in violation of the Securities Act or the rules and regulations promulgated
thereunder) a copy of the prospectus contained in such Registration Statement
to such person at or prior to the written confirmation to such person of the
sale of such Registrable Securities, where the Company was obligated to do so
under the Securities Act or the rules and regulations promulgated thereunder.
This indemnity agreement will be in addition to any liability which the
Distributing Holders may otherwise have.
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(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party otherwise than as to the particular item as to which
indemnification is then being sought solely pursuant to this Section. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof,
subject to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party 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 not be at
the expense of the indemnifying party if the indemnifying party has assumed
the defense of the action with counsel reasonably satisfactory to the
indemnified party; provided that if the indemnified party is the Distributing
Holder, the fees and expenses of such counsel shall be at the expense of the
indemnifying party if (i) the employment of such counsel has been specifically
authorized in writing by the indemnifying party, or (ii) the named parties to
any
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such action (including any impleaded parties) include both the Distributing
Holder and the indemnifying party and the Distributing Holder shall have been
advised by such counsel that there may be one or more legal defenses available
to the indemnifying party different from or in conflict with any legal
defenses which may be available to the Distributing Holder (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of the Distributing Holder, it being understood, however,
that the indemnifying party shall, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable only
for the reasonable fees and expenses of one separate firm of attorneys for the
Distributing Holder, which firm shall be designated in writing by the
Distributing Holder). No settlement of any action against an indemnified
party shall be made without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld.
Section 10. Contribution. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the
Distributing Holder makes a claim for indemnification pursuant to Section 9
hereof but is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that the express
provisions of Section 9 hereof provide for indemnification in such case, or
(ii) contribution under the Securities Act may be required on the part of any
Distributing Holder, then the Company and the applicable Distributing Holder
shall contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (which shall, for all purposes of this Agreement,
include, but not be limited to, all costs of defense and investigation and all
attorneys' fees), in either such case (after contribution from others) on the
basis of relative fault as well as any other relevant equitable
considerations. The relative fault 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 Company on the one hand or the applicable
Distributing Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Distributing Holder agree that it
would not be just and equitable if contribution pursuant to this Section 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 this
Section. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. 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.
Section 11. Notices. Any notice pursuant to this Agreement by the
Company or by the Holders shall be in writing and shall be deemed to have been
duly given if delivered by (i) hand, (ii) by facsimile and followed by mail
delivery or (iii) if mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:
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(a) If to the Company:
WordCruncher Internet Technologies, Inc.
12450 South 405 East, Suite B
Draper, Utah 84020
Attention: Chief Financial Officer
Telephone: (801) 816-9904
Facsimile: (801) 816-9840
(b) If to the Placement Agent:
Cardinal Capital Management, Inc.
3340 Peachtree Road, N.E., Suite 620
Atlanta, Georgia
Telephone: (404) 264-0777
Facsimile: (404) 264-0007
(c) If to the Investors, to their address set forth on
Schedule A annexed to the Purchase Agreement, with a copy to Cardinal Capital
Management, Inc. at the address set forth above.
Notices shall be deemed given at the time they are delivered personally
or five calendar days after they are mailed in the manner set forth above. If
notice is delivered by facsimile to the Company and followed by mail, delivery
shall be deemed given two calendar days after such facsimile is sent.
Section 12. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 13. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 14. Choice of Law; Venue; Jurisdiction. This Agreement will be
construed and enforced in accordance with and governed by the laws of the
State of New York, except for matters arising under the Securities Act,
without reference to principles of conflicts of law. Each of the parties
consents to the jurisdiction of the U.S. District Court sitting in the State
of Georgia, for the Northern District of Georgia, Atlanta Division in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions. Each party hereby agrees that if another party to this
Agreement obtains a judgment against it in such a proceeding, the party which
obtained such judgment may enforce same by summary judgment in the courts of
any country having jurisdiction over the party against whom such judgment was
obtained, and each party hereby waives any defenses available to it under
local
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law and agrees to the enforcement of such a judgment. Each party to this
Agreement irrevocably consents to the service of process in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein. Nothing
herein shall affect the right of any party to serve process in any other
manner permitted by law. Each party waives its right to a trial by jury.
Section 15. Severability. If any provision of this Agreement shall for
any reason be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof and this
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on the day and year first above written.
Attest: WORDCRUNCHER INTERNET TECHNOLOGIES, INC.
By:_____________________ By: /s/ Kenneth W. Bell
Name: -----------------------------
Title: Name: Kenneth W. Bell
Title: Chief Financial Officer
CARDINAL CAPITAL MANAGEMENT
By: /s/ Scott Koch
------------------------------
/s/ Tajunnisah Owesh
----------------------------
MS. TAJUNNISAH OWESH
/s/ Ohoud F. Sharbatly
----------------------------
OHOUD F. SHARBATLY
/s/ Khaled A. AlMubarak
----------------------------
KHALED A. ALMUBARAK
/s/ Mohammad A. AL-Quaiz
----------------------------
MOHAMMAD A. AL-QUAIZ
By: /s/ Abdulaziz A. Kamel
----------------------------
URBAN DEVELOPMENT ESTABLISHMENT
/s/ Yasser M. Zaidan
-----------------------------
YASSER M. ZAIDAN
By: /s/ signature illegible
------------------------------
GIBRALTAR WORLDWIDE, INC.
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SCHEDULE 3(a)
List of Shares to be Registered with the
Registrable Securities in the
Registration Statement
Name of Shareholder # of Shares
James W. & Catherine F. Johnston 300,000
M. Daniel & Lori Lunt 300,000
Kenneth W. & Roberta L. Bell 300,000
Brigham Young University 100,000
Monte Shelley 65,000
James Rosenval 65,000
Daryl K. Gibb 50,000
James S. Roberts 50,000
Jason W. Dzubak 40,000
Richard H. Bennett, Jr. 40,000
Cory Henderson 40,000
David P. Hirschi 36,894
LeRoi H. Stone 22,137
Timothy J. Riker 29,000
Jeffrey Peterson 13,000
J. Todd Ashman 18,447
James K. Ericson 7,380
Terry Brown 8,853
Allen Advertising 8,853
Peter Stoop 5,000
Mike Schouten 5,000
Robert Stevens 5,000
Universal Insurance 5,000
Shane Smit 4,000
Brett Bell 2,000
Alexis Lee 2,000
Shane Jackson 2,000
Andrew Blum 3,690
Randy Nelson 2,214
Jeff Acerson 2,214
Conrad Gottfredson 500
LeGrand Johnston 1,476
Mutual Ventures 150,000
Capital Communications 100,000
Miscellaneous (yet to be determined) 200,000
TOTAL 1,984,658