REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of February 8, 2000 by and among SONIC FOUNDRY, INC., a Maryland corporation
(the "Corporation"), and the persons and the entities listed below (each, an
"Investor" and collectively, the "Investors"). The Corporation and the
Investors are sometimes referred to herein collectively as the "Parties" or each
individually as a "Party."
WHEREAS, in connection with the Subscription Agreement of even date
herewith by and among the Parties hereto (the "Subscription Agreement"), the
Corporation has agreed, upon the terms and subject to the conditions of the
Subscription Agreement, to issue and sell to the Investors 300,000 to 500,000
shares of Common Stock of the Corporation, par value $.01 per share (the
"Shares"); and
WHEREAS, to induce the Investors to execute and deliver the
Subscription Agreement, the Corporation agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws.
NOW, THEREFORE, in considerations of the premises and mutual covenants
and obligations hereafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
1. Registration Rights.
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Additional Issuance Event" shall mean the obligation of the
Corporation, in the event that the shelf registration statement for the Shares
on Form S-3 is not effective within 180 days after the Closing, to deliver,
monthly, until effectiveness of the registration statement, to each Investor
additional Shares of Common Stock equal to 2 1/2% of the number of Shares
purchased by such Investor.
(b) "Closing" shall be deemed to have occurred as of February
14, 2000.
(c) "Commission" shall mean the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act and the Exchange Act.
(d) "Common Stock" shall mean the Corporation's common stock,
$.01 par value per share.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
(f) "Holder" shall mean any Person or Persons to whom
Registrable Securities have been or are issued or any permitted transfers.
(g) "Initiating Holders" shall mean any Holder or Holders of at
least thirty percent (30%) of the Registrable Securities, in the aggregate.
(h) "Person" means a corporation, a limited liability company,
an association, a partnership, an organization, a business, a trust, an
individual, a governmental or political subdivision thereof or a governmental
agency.
(i) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement by the Commission.
(j) "Registrable Securities" shall mean (i) all of the Shares,
if the Shelf Registration Statement is not declared effective or its
effectiveness lapses, and (ii) all of the shares of Common Stock delivered by
the Corporation to any Investors by way of the Additional Issuance Event.
(k) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Corporation in complying with Sections
1.2 and 1.3 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Corporation, reasonable fees and disbursements
of the Holders' Counsel (as hereinafter defined), "blue sky" fees and expenses
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Corporation which shall be paid in any event by the Corporation). Registration
Expenses shall not include Selling Expenses.
(l) "Registration Rights" shall mean the usual and customary
registration rights, including two demand registration rights if called by
Investors holding more than 30% of the Shares, and unlimited piggyback
registration rights, in the event that the Shelf Registration is not declared
effective or its effectiveness lapses.
(m) "Registration Statement" shall mean any registration
statement which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus included therein, all
amendments and supplements to such Registration Statement, including post-
effective amendments, all exhibits and all material incorporated by reference in
such Registration Statement.
(n) "Restricted Shares" shall mean the Shares which are held by
the Investors which have not theretofore been sold to the public pursuant to a
registration statement under the Securities Act or pursuant to Rule 144.
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(o) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
(p) "Rule 145" shall mean Rule 145 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto.
(q) "Rule 415" shall mean Rule 415 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto.
(r) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(s) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and all reasonable fees and disbursements of counsel
for the selling Holders (other than those included in Registration Expenses).
(t) "Shelf Registration" shall mean the shelf registration
statement for the Shares on Form S-3 which shall be filed by the Corporation
with the SEC within 90 days and shall be declared effective within 180 days
after the Closing.
1.2 Registration on Form S-3.
(a) Shelf Registration. The Corporation shall effect the Shelf
Registration for the Shares on Form S-3. This Shelf Registration shall be filed
with the SEC within 90 days, and shall be declared effective within 180 days
after the Closing. Such Shelf Registration shall be continuously maintained in
effect for a period not less than two years from the Closing. If necessary, the
Corporation shall cause to be filed, and shall use its best efforts to have
declared effective as soon as practicable following filing, additional
registration statements or amendments as necessary to maintain such
effectiveness for such two-year period.
(b) Additional Issuance Event. Should the Shelf Registration not
be declared effective within the 180 day period, the Corporation shall, monthly
until effectiveness, on the 211th day after the Closing, and on each successive
30th day thereafter until such Registration Statement shall be declared
effective, deliver to each Investor a number of additional shares of Common
Stock equal to 2 1/2% of the number of Shares purchased by such Investor. If the
Corporation is required to issue any additional shares of Common Stock, the
Corporation shall include those additional shares of Common Stock in the
Registration Statement.
1.3 Additional Registration Rights. Should the Shelf Registration
not be declared effective or should its effectiveness lapse for any reason while
the Corporation has any obligation to maintain such Registration Statement, the
Investors shall have Registration Rights, at the Corporation's expense, which
shall include:
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(a) Demand Registration.
(i) Request for Registration. Subject to the terms hereof,
the Initiating Holders may make a demand in writing for registration under the
Securities Act of all or part of their Registrable Securities (the "Demand
Registration"). The Holders shall be entitled to two (2) Demand Registrations.
If the Corporation receives from the Initiating Holders a written request that
the Corporation effect a registration under the Securities Act of Registrable
Securities, the Corporation will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all of the other Holders; and
(B) as soon as reasonably practicable, use its best
efforts to effect such registration, qualification or compliance (including,
without limitation, appropriate qualification under applicable "blue sky" or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all of such Registrable Securities as
are specified in such request; provided, however, that the Corporation shall not
be obligated to take any action to effect any such registration, qualification
or compliance pursuant to this Section 1.3(a)(i):
(i) in any particular jurisdiction in which the
Corporation would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the
Corporation is already subject to service in such jurisdiction and except as may
be required by the Securities Act; and
(ii) after the Corporation has effected two (2)
such registrations pursuant to this Section 1.3(a)(i), and such registrations
have been declared or ordered effective; and
(iii) after the closing or until all of the
Registrable Securities are freely saleable without restrictions.
In the event that a request for registration is made pursuant to this
Section 1.3(a)(i) but the Corporation is not obligated to effect such requested
registration by virtue of the foregoing clauses (B)(i) through (B)(iii), such
request shall not be deemed to be a demand for registration for purposes of this
Section 1.3(a)(i). Subject to the foregoing clauses (B)(i) through (B)(iii),
the Corporation shall prepare and file a Registration Statement covering the
Registrable Securities so requested to be registered immediately after receipt
of the request or requests of the Initiating Holders.
(ii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Corporation as a part of their request
made pursuant to Section 1.3(a)(i) hereof and the Corporation shall include such
information in the written notice referred to in Section 1.3(a)(i) hereof. In
such event, the right of any Holder to participate in such registration shall be
conditioned upon such Holder's participation in the underwriting arrangements
required by this
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Section 1.3(a)(i), and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent requested shall be limited to the extent provided
herein.
The Corporation shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form (but subject to the reasonable approval
of the Holders holding a majority of the Registrable Securities to be included
in such underwriting) with the managing underwriter selected for such
underwriting by the Holders holding a majority of the Registrable Securities to
be included in such underwriting, which managing underwriter shall be reasonably
acceptable to the Corporation. The Corporation and the Holders participating in
such underwriting shall reasonably cooperate with any such underwriter.
Notwithstanding any other provision of this Section 1.3, if the managing
underwriter advises the Initiating Holders in writing that, in its good faith
judgment, marketing factors require a limitation of the number of shares to be
underwritten, then the Corporation shall so advise all participating Holders and
the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders pro rata on
the basis of the amounts of Registrable Securities held by such Holders at the
time of filing the Registration Statement shall be included in such Registration
Statement. No Registrable Securities excluded from the underwriting by reason
of the underwriter's marketing limitation shall be included in such
registration. If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Corporation may include securities for its
own account (or for the account of other shareholders in accordance with the
terms of this Agreement) in such registration if the underwriter so agrees and
if the number of Registrable Securities that would otherwise have been included
in such registration and underwriting will not thereby be limited.
If the number of Registrable Securities excluded from the underwriting
exceeds fifty percent (50%) of the total Registrable Securities requested to be
included in such underwriting by the Holders, then Holders of a majority of the
Registrable Securities requested to be included in such underwriting may elect
to terminate the registration.
(b) Unlimited Piggyback Registration Rights.
(i) Notice of Registration. If the Corporation at any time
proposes to file a registration statement with respect to any class of equity
securities, whether for its own account (other than in connection with the
Registration Statement contemplated by Section 1.3(a) hereof or a registration
statement on Form S-8 (or any successor or substantially similar form) relating
to an employee stock option, stock purchase or compensation plan or securities
issued or issuable pursuant to any such plan), or a registration statement on
Form S-4 (or any successor or substantially similar form) or for the account of
a holder of securities of the Corporation, other than for the registration of
securities for sale on a continuous or delayed basis pursuant to Rule 415, then
the Corporation will:
(A) promptly give to each Holder written notice
thereof at least twenty (20) days before the anticipated initial filing date of
any such registration statement, and such notice shall offer to all Holders the
opportunity to have any or all of the Registrable Securities held by such
Holders included in such registration statement; and
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(B) include in such registration statement (and any
related qualification under sky" laws or other compliance), and in any
underwriting involved therein, (A) all the Registrable Securities specified in a
written request or requests to be included therein, made within twenty (20) days
after receipt of such written n otice from the Corporation, by any Holder.
Subject to the underwriter limitations, if any, described in Section
1.3(b)(iii) below, each Holder shall be entitled to have its Registrable
Securities included in an unlimited number of registrations pursuant to this
Section 1.3(b)(i).
No right to registration of Registrable Securities under this Section
1.3(b)(i) shall be construed to limit any registration required under Section
1.3(a).
(ii) Holdback by the Corporation. If the Corporation has
previously filed a Statement with respect to Registrable Securities pursuant to
Section 1.3(a), and if such previous registration has not been withdrawn or
abandoned, the Corporation will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except for a registration relating solely to employee benefits plans or to
a transaction under Rule 145), whether on its own behalf or at the request of
any holder or holders of such securities, until a period of ninety (90) days has
elapsed from the effective date of such a previous registration.
(iii) Underwriting. If the registration of which the
Corporation gives notice is for a registered public offering involving an
underwriting, the Corporation shall so advise the Holders as a part of the
written notice given pursuant to Section 1.3(b)(i)(A). In such event the right
of any Holder to registration pursuant to this Section 1.3(b) shall be
conditioned upon such Holder's participation in such underwriting to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Corporation and the other Holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Corporation, but subject to the reasonable approval
of Holders holding a majority of the Registrable Securities to be included in
such registration. Notwithstanding any other provision of this Section 1.3(b),
if the managing underwriter determines in its good faith judgment that marketing
factors require limitation of the number of shares to be underwritten, the
managing underwriter may limit the Registrable Securities to be included in such
registration. The Corporation shall so advise all Holders and the number of
shares of securities that may be included in the registration and underwriting
(other than in behalf of the Corporation) shall first be allocated among all
Holders pro rata on the basis of the amounts of Registrable Securities held by
such Holders at the time of filing of the registration statement; provided,
however, unless otherwise agreed upon by the Holders of a majority of the
Registrable Securities desiring to participate in the offering, in no event
shall the amount of Registrable Securities of the Holders included in the
offering be reduced below thirty percent (30%) of the total amount of securities
included in such offering. No securities of the Corporation held by parties
other than the Holders or the Corporation shall be included in any registration
and underwriting to which this section applies if the number of Registrable
Securities that would otherwise have been included in such registration and
underwriting will thereby be
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limited. If any Holder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Corporation and the
managing underwriter. No right to registration of Registrable Securities under
this Section 1.3(b) may be exercised if such rights would be inconsistent with
the rights granted to holders of Registrable Securities pursuant to the
Registration Rights Agreements dated February 8, 2000 or February 17, 2000.
1.4 Limitations on Subsequent Registration Rights. From and after
the date hereof, without the approval of the Holders of a majority of the
Registrable Securities, the Corporation shall not enter into any agreement
granting any holder or prospective holder of any securities of the Corporation
registration rights with respect to such securities unless: (a) the agreement
does not allow the holder to include the securities in a registration filed
under Section 1.3(b) hereof unless it would not thereby limit the number of
Registrable Securities of the Holders included in the registration; and (b) the
agreement does not grant rights which would delay the ability of the Holders to
obligate the Corporation to file a registration statement on the Holders' behalf
pursuant to Sections 1.2 or 1.3. The Corporation has not previously and shall
not in the future enter into any agreement, arrangement or understanding with
respect to its securities which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
1.5 Expenses of Registration. All Registration Expenses shall be
borne by the Corporation, except as otherwise provided in Section 1.3(a)(ii).
All Selling Expenses relating to securities registered on behalf of the Holders
shall be borne by the Holders of such securities pro rata on the basis of the
number of shares so registered.
1.6 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Corporation pursuant to this Section
1, the Corporation will keep each Holder advised in writing as to the initiation
of each registration and such amendment thereof and as to the completion
thereof. At its expense the Corporation will:
(a) Promptly prepare and file with the Commission a Registration
Statement with respect to such securities and use its best efforts to cause such
Registration Statement to become effective as promptly as possible and remain
effective until the earlier of (i) the date which is one hundred and eighty
(180) days after the effective date of such Registration Statement and (ii) the
date on which all Registrable Securities covered by such Registration Statement
have been sold and the distribution contemplated thereby has been completed (the
"Registration Period"); provided, however, that if, after such Registration
Statement has become effective, the offering of the Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or similar order of the Commission or other governmental agency or court (other
than by reason of any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or necessary
to make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit furnished in writing by a Holder to the Corporation specifically
for inclusion therein), such registration will be deemed not to have been
effected. Notwithstanding the foregoing, if within sixty (60) days after the
effective date of the stop order, injunction or similar order of the Commission
or other governmental agency or court, the same is lifted and the effectiveness
of the registration is restored, the registration shall be deemed to have been
effected, provided, that the Registration
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Period (i) will be tolled during the period the stop order, injunction or
similar order is in effect, (ii) shall resume upon the lifting thereof and (iii)
shall be extended one day for each day during the period that the stop order,
injunction or similar order is in effect.
(b) Furnish, at least five (5) business days before filing a
Registration Statement that registers such Registrable Securities, a prospectus
relating thereto and any amendments or supplements relating to such a
Registration Statement or prospectus, to one counsel selected by the Holders
(the "Holders' Counsel"), copies of all such documents proposed to be filed (it
being understood that such five-business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to the Holders' Counsel in advance of the proposed filing by
a period of time that is customary and reasonable under the circumstances).
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to keep such Registration
Statement effective for the Registration Period, and to comply with the
provisions of the Securities Act with respect to the sale and other disposition
of all securities covered by such Registration Statement.
(d) Notify in writing to the Holders' Counsel promptly (i) of
the receipt by the Corporation of any notification with respect to any comments
by the Commission with respect to such Registration Statement or prospectus or
any amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Corporation of any notification with respect
to the issuance by the Commission of any stop order suspending the effectiveness
of such Registration Statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that purpose and
(iii) of the receipt by the Corporation of any notification with respect to the
suspension of the qualification of such Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes.
(e) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or "blue sky"
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Corporation shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(f) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such number of copies
of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as such Holders or underwriters may reasonably request in order
to facilitate the public offering of such securities.
(g) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
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(h) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such 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.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
Registration Statement with respect to such securities becomes effective, (i) a
copy addressed to Holders of the opinion, dated such date, of the counsel
representing the Corporation for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and (in a non-underwritten
offering) to the Holders requesting registration of Registrable Securities and
(ii) a copy addressed to Holders of the letter dated such date, from the
independent certified public accountants of the Corporation, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and (in a non-underwritten offering) to the Holders requesting
registration of Registrable Securities.
(j) List such Registrable Securities on any national securities
exchange on which any shares of the Common Stock are listed or, if the Common
Stock is not listed on a national securities exchange, use its best efforts to
qualify such Registrable Securities on the American Stock Exchange or such other
national securities exchange as the Corporation shall determine, subject to the
approval by the holders of a majority of the Registrable Securities included in
the registration, which approval the Holders shall not unreasonably withhold.
(k) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and the securities commission or other
regulatory authority of any relevant state or other jurisdiction and make
available to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months beginning
within three months after the effective date of the Registration Statement,
which earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act.
(l) Use its best efforts to take all other steps reasonably
necessary to effect the registration of such Registrable Securities contemplated
hereby.
1.7 Indemnification.
(a) The Corporation will indemnify each Holder; each Holder's
officers, directors, employees, principals, equity holders and partners; each
underwriter, broker or any other Person (other than the Corporation) acting on
behalf of such Holder, and each Person (other than the Corporation) controlling
such Person within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or that compliance has been effected
pursuant to this Section 1, against all expenses, claims, losses, damages or
liabilities,
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joint or several (or actions in respect thereof) (collectively, "Losses"),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or (i) based on any untrue statement (or
alleged untrue statement) of a material fact contained in any Registration
Statement, preliminary or final prospectus, offering circular or other document,
or any amendment or supplement thereto, incident to any such registration,
qualification or compliance, or (ii) based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or (iii) any violation by the Corporation of the
Securities Act, state securities or "blue sky" laws or any rule or regulation
promulgated thereunder applicable to the Corporation in connection with any such
registration, qualification or compliance (each statement, omission or violation
referred to in clauses (i), (ii) and (iii) of this Section 1.7(a) being referred
to as a "Violation"), and the Corporation will reimburse each such Holder, each
of its officers and directors, each such underwriter, broker or other Person
(other than the Corporation) acting on behalf of such Holder, and each such
controlling Person (other than the Corporation) for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such Loss, provided that the Corporation will not be liable to any
such Person in any such case to the extent that any such Loss arises out of or
is based on any untrue statement or omission (or alleged untrue statement or
omission), made in conformity with written information furnished to the
Corporation by an instrument duly executed by such Holder, underwriter or
controlling Person and stated to be specifically for use therein or the
preparation thereby.
(b) Each Holder will, if Registrable Securities held by such
Holder are included, in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Corporation, each
of its directors and officers, each underwriter, broker or other Person acting
on behalf of the Holders, and each Person who controls any of the foregoing
Persons within the meaning of Section 15 of the Securities Act, and each other
such Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
Losses arising out of any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, preliminary or final
prospectus, offering circular or other document, or 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, and will reimburse the
Corporation, such Holders, such directors, officers, underwriters, brokers,
other Persons acting on behalf of the Holders or control Persons for any legal
or any other expenses reasonably incurred in connection with investigating,
preparing or defending any such Loss, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such Registration Statement, preliminary or
final prospectus, offering circular or other document in conformity with written
information furnished to the Corporation by an instrument duly executed by such
Holder and stated to be specifically for use therein or the preparation thereby.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited to an amount equal to the aggregate proceeds
received by such Holder from the sale of Registrable Securities in such
registration.
(c) Each Person entitled to indemnification under this Section
1.7 (the "Indemnified Party") shall give notice to the Party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim
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as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such Indemnified Party's expense, and provided
further, that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 1.7 unless the failure to give such notice is materially prejudicial to
an Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different defenses. If (i) the
Indemnifying Party shall have failed to assume the defense of such claim and to
employ counsel reasonably satisfactory to the Indemnified Party in a timely
manner or (ii) in the reasonable judgment of any Indemnified Party a conflict of
interest may exist between such Indemnified Party and the Indemnifying Party
with respect to such claim, the fees and expenses of any counsel employed by the
Indemnified Party shall be at the expense of the Indemnifying Party; provided
that, if the Indemnifying Party is obligated to pay the fees and expenses of
counsel for other Indemnified Parties, such Indemnifying Party shall be
obligated to pay only the fees and expenses associated with one attorney or law
firm for the Indemnified Parties, unless there exists a conflict of interest or
separate and different defenses among the Indemnified Parties. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, claim, damage, liability or action referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amounts paid or payable by such
Indemnified Party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of 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 by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the foregoing, the maximum
amount which any Holder shall be required to contribute pursuant to this Section
1.7(d) shall be limited to an amount equal to the net proceeds actually received
by such Holder from the sale of Registrable Securities effected pursuant to such
registration.
1.8 Information by Holder. The Holders of securities included in any
registration shall furnish to the Corporation in writing such information
regarding such Holders, the Registrable Securities held by such Holders and the
distribution proposed by such Holders as the Corporation may reasonably request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
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1.9 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, the
Corporation agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after the effective date
that the Corporation becomes subject to the reporting requirements of the
Securities Act or the Exchange Act.
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Corporation under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements);
(c) So long as a Holder owns any Registrable Securities to
furnish to the Holder forthwith upon request a written statement by the
Corporation as to its compliance with the reporting requirements of said Rule
144, and of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Corporation, and such other reports and
documents of the Corporation and other information in the possession of or
reasonably obtainable by the Corporation as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder to
sell any such securities without registration. The Corporation will take action
reasonably requested by a Holder to facilitate the transfer of Registrable
Securities pursuant to Rule 144.
1.10 Transfer of Registration Rights. Any Holder may assign its
rights hereunder to any purchaser of the Registrable Securities; provided, that
immediately after the transfer the further disposition of any of the securities
is restricted by the Securities Act; and provided further, however, that such
purchaser or transferee shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as the seller or transferor hereunder whereupon such purchaser or
transferee shall have the benefits of, and shall be subject to the restrictions
contained in, this Agreement applicable to the seller or transferor.
2. Miscellaneous.
2.1 Governing Law; Submission to Jurisdiction. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed wholly therein,
without regard to principles of the conflict of laws thereof.
(b) Each Party hereto hereby agrees that any suit or judgment
entered by any court in respect thereof may be brought to the extent permitted
by applicable law in the State of New York, County of Manhattan or in any United
States District Court for the District of the State of New York, as the Party
commencing such suit, action or proceeding may elect in its sole discretion; and
each Party hereto hereby irrevocably submits to the jurisdiction of such courts
and any appellate court or body thereof for the purpose of any suit, action,
proceeding or
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judgment (and waives for such purpose any other preferential jurisdiction by
reason of its present of future domicile or otherwise).
(c) Each Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in the State of
New York, County of Manhattan or in any United States District Court for the
District of the State of New York and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
2.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Holder, and
the closing of the transactions contemplated hereby.
2.3 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the Parties hereto.
2.4 Entire Agreement. This Agreement and the Subscription Agreement
contain the entire understanding and agreement of the Parties with respect to
the subject matter hereof and thereof. This Agreement and the Subscription
Agreement supersede all prior agreements and understandings among the Parties
hereto with respect to the subject matter hereof.
2.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
mailed by certified or registered mail, postage prepaid, return receipt
requested, by courier or facsimile (provided confirmation of transmission is
mechanically generated and kept on file by the sending party), addressed (a) if
to any Holder, at such Holder's address as set forth in the Corporation's
records, or at such other address as such Holder shall have furnished to the
Corporation in writing with copies to CEUT at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxx, (b) if to the Corporation, at
000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxxxxx, or at
such other address as the Corporation shall have furnished to such Holders in
writing. Notices that are mailed shall be deemed to have been given five days
after deposit in the United States mail and notices delivered personally, by
facsimile or by courier shall be deemed to have been given upon delivery to
recipient's address.
2.6 Delays or Omissions. No failure or delay by any Holder in
exercising any right, power or privilege hereunder and no course of dealing
between the Corporation, on the one hand, and any Holder, on the other hand,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. Any
Person having rights under any provision of this Agreement shall be entitled to
enforce such rights specifically or to recover damages or to exercise any other
remedy available to it at law or in equity. The foregoing rights and remedies
shall be cumulative and the exercise of any right or remedy provided herein
shall not preclude any Person from exercising any other right or remedy provided
herein. The Corporation agrees that monetary damages would not be adequate
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compensation for any loss incurred by reason of a breach by it of any 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. No
notice to or demand on the Corporation in any case shall entitle the Corporation
to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Holder to any other or further action
in any circumstances without notice or demand. Each covenant contained herein
shall operate independently of any other covenant contained herein.
2.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.8 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable the remainder of this Agreement and application of such provision
to Persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto, the parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
2.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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COUNTERPART SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
CORPORATION:
SONIC FOUNDRY, INC.
By:
-------------------------
Name:
Title:
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INVESTORS:
________________________________
________________________________
________________________________
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