Exhibit 10.1(q)
REGISTRATION RIGHTS AGREEMENT
between THE MENTUS GROUP, INC., a Delaware
corporation (the "Company"), and
________________________________
("Shareholder"), as of April ___, 1995.
RECITALS:
In accordance with that certain Warrant Agreement between the Company
and Shareholder, Shareholder has exercised certain warrants of the Company
issued pursuant thereto (the "Warrants") to purchase _____ shares of the
Company's Common Stock. The parties desire to set forth herein certain
rights, terms and conditions with respect to the registration of the shares
of Common Stock held by Shareholder and purchased pursuant to the exercise of
Warrants.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Shareholder
agree as follows:
1. Registrations. If the Company has elected to effectuate a public
registration of shares of the Company's Common Stock for the Company's
account, the Company will give prompt notice to Shareholder (the "Company's
Notice"). The Company's Notice shall describe the date of proposed filing and
the date by which the registration rights granted pursuant to this Section 1
must be exercised, the nature and method of any such registration and shall
include a listing of the jurisdictions, if any, in which the Company proposes
to register or qualify the securities under the applicable securities or
"Blue Sky" laws of such jurisdictions. Upon receipt of the Company's Notice,
Shareholder may request, in writing, that the Company effect the public
registration of the shares then held by Shareholder and purchased in
accordance with the Stock Purchase Agreement (which request shall specify the
aggregate number of shares intended to be registered by Shareholder, shall
describe the nature or method of the proposed registration and shall contain
an undertaking by Shareholder to cooperate fully with the Company in order to
permit the Company to comply with all applicable requirements of the relevant
securities laws and the rules and regulations thereunder and to obtain
acceleration of the effective date of the registration statement contemplated
thereby), and the Company will use its best efforts to cause all shares as to
which registration has been requested by Shareholder to be included in the
Company's registration statement. The registration rights granted pursuant to
this Section 1 may not be exercised more than once, whether exercised in
whole or in part (provided, however, that any request made pursuant to this
Section 1 which does not result in the declaration of effectiveness of a
registration statement covering the shares owned by Shareholder, whether as a
result of the withdrawal of the registration statement by the Company or
through other action or inaction of the Company or otherwise, shall not be
counted in determining the number of times registration rights have been
exercised pursuant to this Section 1). The Company shall be entitled to
postpone the filing of any registration statement if the Company's Board of
Directors reasonably determines, in good faith, that such registration would
not be in the best interests of the Company.
2. Registration Procedures. If the Company effects a public
registration of any shares held by the Shareholder, the Company shall:
(a) prepare and file with the Securities and Exchange Commission
(the "SEC") or a comparable entity in a foreign jurisdiction ("Foreign
Securities Commission" or "FSC") a registration statement on the appropriate
form with respect to such shares and use its best efforts to cause such
registration statement to become effective;
(b) prepare and file with the SEC or FSC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith and take such other action as may be necessary to comply
with the provisions of the applicable securities laws;
(c) furnish to the Shareholder, without charge, a copy of the
preliminary prospectus, any supplements thereto and a final prospectus and
any supplements thereto in conformity with the requirements of the applicable
securities laws, and such other documents as the Shareholder may reasonably
request;
(d) if, during any period in which, in the opinion of the Company's
counsel, a prospectus relating to the shares is required to be delivered
under the applicable securities laws in connection with any offer or sale
contemplated by any registration statement, any event known to the Company
occurs as a result of which the prospectus would include an untrue statement
of material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or
supplement the related prospectus to comply with the applicable securities
laws or the respective rules and regulations thereunder, to notify the
Shareholder promptly to prepare and file with the SEC or FSC an amendment or
supplement, as may be necessary to correct such untrue statement or omission
or to make any registration statement or the related prospectus comply with
such requirements and to furnish to Shareholder and its counsel such
amendment or supplement to such registration statement or prospectus;
(e) timely file with the SEC or FSC (i) any amendment or supplement
to any registration statement or to any related prospectus that is required
by the applicable securities laws or requested by the SEC or FSC and (ii) all
documents (and any amendments to previously filed documents) required to be
filed by the Company pursuant to applicable securities laws and respective
rules and regulations thereunder;
(f) within five days of filing with the SEC or FSC of (i) any
amendment or supplement to any registration statement, (ii) any amendment or
supplement to the related prospectus, or (iii) any document incorporated by
reference in any of the foregoing or any amendment of or supplement to any
such incorporated document, furnish a copy thereof to Shareholder and its
counsel;
(g) advise Shareholder promptly (i) when any post-effective
amendment to any registration statement becomes effective and when any
further amendment of or supplement to the prospectus shall be filed with the
SEC or FSC, (ii) of any request or proposed request by the SEC or FSC for an
amendment or supplement to any registration statement, to the related
prospectus, to any document incorporated by reference in any of the foregoing
or for any additional information, (iii) of the issuance by the SEC or FSC of
any stop order suspending the effectiveness of any registration statement or
any order directed to the related prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order proceeding
or of any challenge to the
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accuracy or adequacy of any document incorporated by reference in such
prospectus, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the shares for sale in any
jurisdiction or the initiation or threat of any proceeding for the purpose
and (v) of the happening of any event which makes untrue any statement of a
material fact made in any registration statement or the related prospectus as
amended or supplemented or which requires the making of a change in such
registration statement or such prospectus as amended or supplemented in order
to make any material statement therein not misleading;
(h) if the SEC or FSC shall issue a stop order suspending the
effectiveness of any registration statement, make a good faith effort to
obtain the lifting of that order at the earliest possible time;
(i) deliver to Shareholder, not later than the time the Company
makes the same available generally to other shareholders of the Company,
copies of all public reports or releases and all reports and financial
statements, if any, furnished by the Company to any securities exchange on
which the shares may be listed pursuant to requirements of or agreements with
such exchange or to the SEC or FSC pursuant to applicable securities laws or
any rule or regulation of the SEC or FSC thereunder; and
(j) use its best efforts to register or qualify the shares covered
by such registration statement under the securities or blue sky laws of such
jurisdictions as the Shareholder shall reasonably request considering the
nature and size of the offering and do such other acts and things as may be
reasonably necessary to enable the Shareholder to consummate the public sale
or other disposition in each such jurisdiction of such shares; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in which it has
not been qualified or to file any general consent to service of process.
3. Registration Expenses. The Company shall pay the following fees,
disbursements and expenses: all registration and filing fees, printing
expenses, auditors' fees, listing fees, registrar and transfer agent's fees,
fees and disbursements of counsel to the Company, expenses (including
reasonable fees and disbursements of counsel) of complying with applicable
securities or "Blue Sky" laws and the fees of the National Association of
Securities Dealers, Inc., if applicable, in connection with the review of
such offering. The underwriting discounts and commissions allocable to the
shares included in any offering shall be borne by the holders thereof.
4. Indemnification.
(a) Upon registration of shares under the applicable securities
laws pursuant to this Agreement, the Company will indemnify and hold harmless
the Shareholder, its officers and directors, each underwriter (as defined in
the applicable securities laws) and each other person, if any, who controls
any of the Shareholder or any such underwriter within the meaning of the
applicable securities laws from and against any and all losses, claims,
damages and liabilities (including the fees and expenses of counsel in
connection therewith in connection with any governmental or regulatory
investigation or proceeding), arising out of any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such shares were registered, any prospectus or preliminary
prospectus contained therein or any amendment or supplement thereto
(including, in each case, documents incorporated by reference
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therein), or arising out of 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, except insofar as such losses, claims,
damages or liabilities arise out of any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
of the Shareholder, Shareholder's counsel or any underwriter and furnished to
the Company in writing by any of the Shareholder or such counsel or
underwriter; provided that the foregoing indemnification with respect to a
preliminary prospectus shall not inure to the benefit of any underwriter (or
the benefit of any person controlling such underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased shares to
the extent such losses, claims, damages or liabilities result from the fact
that a copy of the final prospectus had not been sent or given to such person
at or prior to written confirmation of the sale of such shares to such person.
(b) Upon registration of shares under the applicable securities
laws pursuant to this Agreement, Shareholder will indemnify and hold harmless
the Company, its directors, its officers who sign the registration statement,
each underwriter and each person, if any, who controls the Company or such
underwriter within the meaning of the applicable securities laws, to the same
extent as the foregoing indemnity from the Company to the Shareholder, but
only with reference to information relating to the Shareholder and furnished
to the Company by the Shareholder for use in the registration statement; any
publicly discloseable documents of the Shareholder published within the time
frame of the registration statement; any prospectus or preliminary prospectus
contained therein or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this section, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party has agreed to the retention of such counsel at its expense
or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party, the
indemnifying party proposes that the same counsel represent both the
indemnified party and the indemnifying party and representation of both
parties by the counsel would be inappropriate due to actual or potential
differing interests between them. It is understood, where the expense of
separate counsel shall be borne by the indemnifying party pursuant to the
foregoing sentence, that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm qualified in such
jurisdiction to act as counsel for such indemnified party. Any firm
designated by the indemnifying party shall be approved as satisfactory in
writing by the Shareholder in the case of parties indemnified pursuant to
Section 4(a) and by the Company in the case of parties indemnified pursuant
to Section 4(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
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(d) Indemnification pursuant to Section 4(a) and (b) shall be on
such other terms and conditions as are at the time customary and reasonably
required by underwriters in public offerings, including providing for
contribution in the event indemnification provided in this Section is
unavailable or insufficient.
5. Selection of Underwriters. The Company will have the right to
select p:\nycvestment banking firm(s) acting as Manager(s) in connection with
any underwritten public offering.
6. Miscellaneous.
(a) Company's Right to Enter into Other Registration Rights
Agreements. Shareholder understands and acknowledges the Company's right to
enter into registration rights agreements with other existing or future
shareholders or employees of the Company pursuant to such terms and
conditions as the Company, in its sole and absolute discretion, deems
appropriate.
(b) Remedies. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
(c) Assignment. Neither party shall have the right to assign this
Agreement without the express written consent of the non-assigning party. Any
assignment in violation of this Section 6(c) shall be null and void.
(d) Governing Law. The laws of the State of Delaware (without
giving effect to the choice of law provisions thereof) shall govern the
interpretation and enforcement of this Agreement.
THE MENTUS GROUP, INC., a
- ---------------------------------- Delaware corporation
By: By
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Its: Its
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