EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into on June 27, 2000,
but effective as of the Final Closing Date, by and among ProsoftTraining.com, a
Nevada corporation (the "Company"), and Drake Personnel (New Zealand) Limited, a
corporation organized under the laws of the Bahamas ("Drake").
The Company and Drake are parties to a Stock Purchase Agreement dated
as of June 27, 2000 (the "Acquisition Agreement") pursuant to which the Company
is purchasing one hundred percent (100%) of the outstanding shares of
ComputerPREP, Inc., a subsidiary of Drake ("ComputerPREP").
The execution and delivery of this Agreement is a condition to Drake's
sale of the ComputerPREP Shares. Capitalized terms used herein shall have the
meanings set forth in Section 6 below.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, agree as follows:
1. REGISTRATION STATEMENTS.
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(a) Shelf Registration.
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(i) The Company shall, on or before the applicable Registration
Filing Dates set forth in Section 1(b), prepare and file with the Commission
under the Securities Act a Registration Statement with respect to the respective
Registrable Securities set forth in Section 1(b), and shall use its best efforts
to cause each such Registration Statement to be declared effective at the
earliest practicable date. The Company shall, subject to Section 1(a)(v), ensure
the availability of a Prospectus meeting the requirements of Section 10(a) of
the Securities Act and shall take any and all other actions necessary in order
to ensure the ability of the holders of the Registrable Securities to effect a
resale of their Registrable Securities, for such period as the Company is
obligated to maintain the effectiveness of a Registration Statement pursuant to
Section 1(a)(ii).
(ii) The Company shall use its best efforts to cause any such
Registration Statement described in Section 1(a)(i) to become and remain
effective (or, if required by applicable law, to cause another Registration
Statement with respect to the Registrable Securities covered by that
Registration Statement to become and remain effective) until the earlier to
occur of: (i) such time as all the Registrable Securities covered by that
Registration Statement have been sold by Drake and (ii) such time as all the
Registrable Securities covered by that Registration Statement held by Drake
could be sold under Rule 144 of the Securities Act during any 90-day period.
(iii) Each holder of Registrable Securities agrees by acquisition
of such Registrable Securities to give at least five Business Days' prior notice
to the Company of any intended distributions of Registrable Securities under any
Registration Statement described in
Section 1(a)(i), which notice shall specify the date on which such holder
intends to begin such distribution.
(iv) As soon as possible after the date notice is provided
pursuant to Section 1(a)(iii), and in any event within five Business Days of
such date, the Company shall, subject to Section 1(a)(v):
(A) file such amendments to the Registration Statement and
the Prospectus, file such documents as may be required to be incorporated by
reference in any of such documents, and take all other actions as may be
necessary to ensure to the holders of Registrable Securities the ability to
effect the public resale of their Registrable Securities for a period of at
least 90 days following the date set forth in each such notice (including
without limitation taking any actions necessary to ensure the availability of a
Prospectus meeting the requirements of Section 10(a) of the Securities Act), (B)
provide each holder of Registrable Securities copies of any documents prepared
pursuant to Section 1(a)(iv)(A), and (C) inform each holder of Registrable
Securities that the Company has complied with the obligations in Section
1(a)(iv)(A) and that such holder may sell such holder's Registrable Securities.
(v) The Company may suspend the effectiveness of any
Registration Statement filed pursuant to this Section 1(a) if, in its reasonable
judgment, (A) maintaining the effectiveness of such Registration Statement at
such time would adversely affect a proposed financing, reorganization or
recapitalization, or pending negotiations relating to a merger, consolidation,
acquisition or similar transaction; or (B) financial statements meeting the
requirements of Regulation S-X are not available at such time because of any
such pending proposal or negotiations; provided, however, that the right of the
Company pursuant to this subSection (v) to suspend the effectiveness of the
Registration Statement shall not extend for more than 90 consecutive days; and
provided, further, that the Company shall give to each holder of Registrable
Securities prior written notice of such suspension. The ninety (90) day period
referred to in subsection 1(a)(iv) during which the registration statement must
be kept current after any notice provided for in subsection 1(a)(iii) shall be
extended for an additional number of business days equal to the number of
business days during which the right to sell shares was suspended pursuant to
the preceding sentence.
(b) Registration Filing Dates. The Registration Filing Dates for
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the various Registrable Securities shall be as follows:
(i) With respect to the Purchase Shares:
Registration Filing Date Number of Purchase Shares
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Six (6) months after the Final Closing Date 380,808 shares
Twelve (12) months after the Final Closing Date 380,807 shares
Eighteen (18) months after the Final Closing Date 380,807 shares
(ii) The Filing Dates for the Warrant Shares shall be the dates
on which the Warrants first become exercisable as to the respective Warrant
Shares. The Filing Date as to the Incentive Warrant Shares shall be November 15,
2003.
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(c) Amendments. Upon the occurrence of any event that would cause
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any Registration Statement (i) to contain a material misstatement or omission or
(ii) not to be effective and usable for resale of Registrable Securities during
the period that such Registration Statement is required to be effective and
usable, the Company shall promptly file an amendment to the Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), using its best efforts
to cause such amendment to be declared effective and such Registration Statement
to become usable as soon as practicable thereafter.
2. REGISTRATION PROCEDURES.
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In connection with any Registration Statement and subject to the
provisions of Section 1 the Company shall use its best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Registrable Securities being
sold in accordance with the intended method or methods of distribution thereof
and shall include all financial statements required by the Commission to be
filed therewith (including, if required by the Securities Act or any regulation
thereunder, financial statements of any Subsidiary of the Company which shall
have guaranteed any indebtedness of the Company), cooperate and assist in any
filings required to be made with the NASD and use its best efforts to cause such
registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the selling holders to
consummate the disposition of such Registrable Securities;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period set forth in
Section1; in the case of any Registration Statement filed pursuant to Rule 415
under the Securities Act, cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely manner,
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(c) advise the holders of the Registrable Securities promptly and, if
requested by such Persons, confirm such advice in writing:
(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment thereto, when the same has become
effective;
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(ii) of the existence of any fact and the happening of any event
that makes any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading; and
(iii) of the issuance by the Commission of any stop order or
other order suspending the effectiveness of the Registration Statement, or any
order issued by any state securities commission or other regulatory authority
suspending the qualification or exemption from qualification of such Registrable
Securities under state securities or "blue sky" laws. If at any time the Company
shall receive any such stop order suspending the effectiveness of the
Registration Statement, or any such order from a state securities commission or
other regulatory authority, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(d) deliver to each holder of the Registrable Securities, without
charge, as many copies of the Prospectus and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of the
Prospectus and any amendment or supplement thereto by each of the holders of the
Registrable Securities in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(e) prior to any public offering of Registrable Securities, cooperate
with the holders of the Registrable Securities and their respective counsel in
connection with the registration and qualification of the Registrable Securities
under the securities or "blue sky" laws of such jurisdictions as the holders of
the Registrable Securities may reasonably request and do any and all other acts
or things necessary or advisable to enable the disposition in such jurisdictions
of the Registrable Securities covered by the Registration Statement;
(f) use its best efforts to cause the Registrable Securities covered
by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(g) if any fact or event contemplated by clause (c)(ii) above shall
exist or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(h) provide a transfer agent and registrar (if the Company does not
already have such an agent) and CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement;
(i) make available for inspection by a representative of the holders
of the Registrable Securities, and any attorney, accountant or other
professional retained by such
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holders, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such holder,
attorney, accountant or other professional in connection with such Registration
Statement subsequent to the filing thereof and prior to its effectiveness,
except that the aforementioned advisors may be required to sign a reasonably
acceptable confidentiality agreement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission;
(k) use its best efforts to cause all Registrable Securities to be
listed on each securities exchange, if any, on which equity securities issued by
the Company are then listed; and
(l) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby.
Each holder of the Registrable Securities as to which any Registration
Statement is being effected agrees to furnish promptly to the Company all
information reasonably known to such holder to be necessary to make the
information previously furnished to the Company by such holder not materially
misleading.
Each holder of the Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the existence of any fact of the kind described in Section 2(c)(ii), or notice
of a stop order or suspension described in Section 2(c)(iii), such holder shall
forthwith discontinue disposition of Registrable Securities and cease to use the
Prospectus in use under such Registration Statement. The Company shall, as
promptly as practicable, provide each holder with copies of the supplemented or
amended Prospectus contemplated by Section 2(g), or advise the holders in
writing that the use of the Prospectus may be resumed, and provide each holder
with copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus. If so directed by the Company, each 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.
3. REGISTRATION EXPENSES. All expenses incident to the Company's
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performance of or compliance with this Agreement shall be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation:
(a) all registration and filing fees and expenses (including filings
made with the NASD);
(b) fees and expenses of compliance with federal securities and state
"blue sky" or securities laws;
(c) expenses of printing (including printing certificates for the
Registrable Securities and Prospectuses), messenger and delivery services and
telephone;
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(d) all application and filing fees in connection with listing the
Registrable Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof;
(e) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and"
cold comfort" letters required by or incident to such performance); and
(f) any reasonable out-of-pocket expenses of the holders of the
Registrable Securities (or the agents who manage their accounts).
The Company shall, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, rating agency fees and the fees and expenses of any Person, including
special experts, retained by the Company.
4. INDEMNIFICATION.
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(a) The Company agrees to indemnify and hold harmless each holder of
the Registrable Securities and each Person, if any, who controls such holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses (including, without limiting the foregoing but subject to Section
4(c),the reasonable legal and other expenses incurred in connection with any
action, suit or proceeding or any claim asserted) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused directly by an untrue
statement or omission contained in information relating to such holder,
furnished in writing to the Company by or on behalf of such holder expressly for
use therein. In connection with any Underwritten Offering permitted by Section
7, the Company shall also indemnify underwriters, if any, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
holders, if requested in connection with any Registration Statement.
(b) As a condition to the inclusion of its Registrable Securities in
any Registration Statement pursuant to this Agreement, each holder thereof shall
furnish to the Company in writing, promptly after receipt of a request therefor,
such information as the Company may reasonably request for use in connection
with any Registration Statement, Prospectus or preliminary prospectus (including
such completed and executed questionnaires as the Company may reasonably
request) and agrees to indemnify and hold harmless, severally and not jointly,
the Company and its directors, its officers who sign such Registration
Statement, and any Person controlling the Company within the meaning of Section
15 of the Securities Act or
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Section 20 of the Exchange Act to the same extent as the indemnity from the
Company to each holder and Persons controlling such holder, but only with
reference to information relating specifically to such holder furnished in
writing by or on behalf of such holder expressly for use in such Registration
Statement or the Prospectus or any preliminary prospectus included therein, and
of which none of the Company, its directors, officers or Affiliates has any
actual or constructive knowledge independent of such holder; provided, however,
that such holder of Registrable Securities shall not be liable in any such case
to the extent that the holder has furnished in writing to the Company prior to
the filing of any such Registration Statement, Prospectus or preliminary
prospectus information expressly for use in such Registration Statement,
Prospectus or preliminary prospectus which corrected or made not misleading
information previously furnished to the Company, and the Company failed to
include such information therein. In case any action shall be brought against
the Company, any of its directors, any such officer, or any such controlling
Person based on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against one or more
of the holders, such holders shall have the rights and duties given to the
Company by Section 4(c) (except that if the Company as provided in Section 4(c)
shall have assumed the defense thereof such holders shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at such holder's
expense) and the Company and its directors, any such officers, and any such
controlling Person shall have the rights and duties given to the holders by
Section 4(c). In no event shall the liability of any selling holder hereunder be
greater than the net proceeds (i.e., proceeds net of underwriting discounts,
fees, commissions and any other expenses payable by such selling holder)received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against any current or
former holder of the Registrable Securities or any Person controlling such
holder, with respect to which indemnity may be sought against the Company
pursuant to Section 4(a), such holder or such Person controlling such holder
shall promptly notify the Company in writing and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such holder and payment of all fees and expenses relating thereto. Such holder
and such Persons controlling such holder shall have the right to employ separate
counsel in any such action or proceeding and participate in the defense thereof,
but the fees and expenses of such counsel shall be at such holder's expense
unless (i) the employment of such counsel has been specifically authorized in
writing by the Company, which authorization shall not be unreasonably withheld,
(ii) the Company has not assumed the defense and employed counsel reasonably
satisfactory to such holder within 15 days after notice of any such action or
proceeding, or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such holder or any Person
controlling such holder and the Company and such holder or any Person
controlling such holder shall have been advised by such counsel that there maybe
one or more legal defenses available to such holder or Person controlling such
holder that are different from or additional to those available to the Company
and, in the reasonable opinion of such counsel, could not be asserted by the
Company's counsel without creating a conflict of interest (in which case the
Company shall not have the right to assume the defense of such action or
proceeding on behalf of such holder or controlling Person, it being understood,
however, that the Company shall not, in connection with any one such action or
separate but substantially similar or related
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actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to all local counsel which is necessary,
in the good faith opinion of both counsel for the indemnifying party and counsel
for the indemnified party in order to adequately represent the indemnified
parties) for all such holders and controlling Persons, which firm shall be
designated in writing by the holders of a majority of the Registrable Securities
currently or formerly held by such holders and that all such fees and expenses
shall be reimbursed as they are incurred upon written request and presentation
of invoices). The Company shall not be liable for any settlement of any such
action effected without the written consent of the Company (which consent shall
not be unreasonably withheld), but if settled with the written consent of the
Company or if there is a final judgment for the plaintiff, the Company agrees to
indemnify and hold harmless such holder and all Persons controlling such holder
from and against any loss or liability by reason of such settlement or judgment.
The Company shall not, without the prior written consent of the holder, effect
any settlement of any pending or threatened proceeding in respect of which any
holder or any Person controlling such holder is a party and indemnity has been
sought hereunder by such holder or any Person controlling such holder unless
such settlement includes an unconditional release of such holder or such
controlling Person from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Section 4 is
unavailable to an indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and such holders on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and such holders on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company on the one hand or by such
holders on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim.
(e) The Company and the holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
4 were determined by a pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
subsection(d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
subsection(d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding any other provision of this Agreement, no
holder of the Registrable Securities shall be required to contribute an amount
greater than the net proceeds received by such holder with respect to the
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sale of Registrable Securities giving rise to any indemnification or
contribution obligation under this Section 4. 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.
5. RULE 144. The Company agrees with each holder of Registrable
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Securities to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time it is subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Securities upon request (i)
a written statement by the Company as to its compliance with the requirements of
said Rule 144(c) and the reporting requirements of the Securities Act and the
Exchange Act (at any time it is subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of the Company, and (iii)such
other reports and documents of the Company as such holder may reasonably request
to avail itself of any similar rule or regulation of the Commission allowing it
to sell any such securities without registration.
6. INTERPRETATION OF AGREEMENT; DEFINITIONS.
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(a) Definitions. Unless the context otherwise requires, the terms
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hereinafter set forth when used herein shall have the following meanings and the
following definitions shall be equally applicable to both the singular and
plural forms of any of the terms herein defined.
"AFFILIATE" means, as to any Person, a Person which directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, the first Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock, through an investment advisory or other fiduciary
arrangement, by contract or otherwise.
"ACQUISITION AGREEMENT" has the meaning assigned in the first
paragraph of this Agreement.
"AGREEMENT" means this Registration Rights Agreement and all Schedules
hereto.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in New York are required by law to close or are customarily
closed.
"COMMISSION" means the Securities and Exchange Commission as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Exchange Act, then the Person performing
such duties at such time.
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"COMMON STOCK" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company.
"COMPANY" has the meaning assigned in the first paragraph of this
Agreement.
"DRAKE" has the meaning assigned in the first paragraph of this
Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INCENTIVE WARRANT SHARES" means the shares of Common Stock issuable
to Drake upon exercise of any Incentive Warrants (as defined in the Acquisition
Agreement) issuable to Drake under the Acquisition Agreement.
"NASD" means National Association of Securities Dealers, Inc.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
"PROSPECTUS" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"PURCHASE SHARES" means the 1,142,422 shares of Common Stock issued to
Drake under the Acquisition Agreement.
"REGISTRABLE SECURITIES" means the Purchase Shares, the Warrant Shares
and the Incentive Warrant Shares. As to any particular securities, such
securities will cease to be Registrable Securities when (i)they have been
transferred in a public offering registered under the Securities Act, (ii) they
have been transferred in a sale made through a broker, dealer or market-maker
pursuant to Rule 144 under the Securities Act or (iii) the holder thereof is
able to sell all of such securities under Rule 144 under the Securities Act
during any 90-day period.
"REGISTRATION FILING DATES" shall mean, as to the various Registrable
Securities, the dates set forth in Section 1(b).
"REGISTRATION STATEMENT" means any registration statement of the
Company relating to the registration for resale of Registrable Securities,
including any registration statement filed pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"WARRANT SHARES" means the 600,000 shares of Common Stock issuable to
Drake upon exercise of the Warrants (as defined in the Acquisition Agreement)
issued to Drake under the Acquisition Agreement.
(b) Accounting Principles. Where the character or amount of any
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asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with the
generally accepted accounting principles in effect from time to time, to the
extent applicable, except where such principles are inconsistent with the
express requirements of this Agreement including without limitation the
definitions set out in Section 8.
(c) Directly or Indirectly. Where any provision in this Agreement
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refer to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether the action in question
is taken directly or indirectly by such Person.
7. MISCELLANEOUS.
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(a) Remedies. Each holder of the Registrable Securities, in
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addition to being entitled to exercise all rights provided herein, and granted
by law, including recovery of damages, shall be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to waive the defense
in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after
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the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to such holders of the
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and each of Drake.
(d) Notices. All notices, demands and other communications provided
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for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery. Such notices, demands and other communications will be sent to Drake
or the Company at the address indicated in the Acquisition Agreement and, to any
other holder of Registrable Securities at such holder's address of record
appearing on the Company's books, or to such other address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party. All such notices, demands and communications shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; upon receipt, if mailed postage prepaid; when
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answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered, if delivered by an air courier guaranteeing overnight
delivery.
(e) Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the successors and permitted assigns of Drake,
including without limitation and without the need for an express assignment,
Affiliates of Drake; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon transferees of Drake that are not Affiliates
of Drake and do not hold at least 100,000 shares of Common Stock.
(f) Counterparts. This Agreement may be executed in any number of
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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. THE CORPORATE LAW OF THE STATE OF NEVADA SHALL
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GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS AND OBLIGATIONS
OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND
THE EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
(h) Severability. Should any part of this Agreement for any reason
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be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Agreement had been executed with the invalid portion thereof eliminated
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any such part, parts, or portion which may, for any reason, be hereafter
declared invalid.
(i) Captions. The descriptive headings of the various Sections or
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parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
(j) Arbitration.
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(i) Any dispute, controversy or claim arising out of, relating
to or in connection with this Agreement, including, without limitation, any
dispute regarding its validity or termination or the performance or breach
thereof, shall be finally settled by arbitration administrated by the American
Arbitration Association (the "AAA"). The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the AAA, in effect at the
time of the arbitration, except as they may be modified herein or by agreement
of the parties to the arbitration.
(ii) The place of arbitration shall be Austin, Texas and the law
of Texas shall be applied.
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(iii) The arbitration shall be conducted by three arbitrators.
Each party shall appoint an arbitrator and the two arbitrators shall appoint the
third arbitrator.
(iv) The award rendered by the arbitrators shall be final and
binding on the parties to the arbitration. Judgment on the award may be entered
in any court of competent jurisdiction.
(v) To initiate arbitration, a party shall send a notice
demanding arbitration to the other party in the manner specified in Section
7(d).
(vi) The arbitrators must reach a decision within one hundred
twenty (120) days after the appointment of the third arbitrator.
(vii) Any two of the arbitrators are empowered at any time to:
(i) dismiss any dispute, controversy or claim submitted for arbitration; (ii)
issue injunctions against any party; (iii) issue sanctions against any party;
(iv) compel disclosure of documents or submissions of interrogatories or
depositions; and (v) determine the relevance or pertinence of any document or
person to the dispute, controversy, or claim submitted for arbitration.
(viii) Each party shall pay its own attorney fees and costs of
arbitration, the fees and expenses of the arbitrator it selects and one-half of
the fees and expenses of the third arbitrator and one-half of the fee and
expenses of the AAA.
(ix) In no event shall either party be liable to the other
party for special, incidental or consequential damages.
(k) Final Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
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AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written.
PROSOFTTRAINING.COM, a Nevada corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
DRAKE PERSONNEL (NEW ZEALAND) LIMITED, a
corporation organized under the laws of the
Bahamas
By: __________________________________
Name: __________________________________
Title: __________________________________
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT