REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
______________, 2000, between Perficient, Inc., a Delaware corporation (the
"Company), and the individuals listed on the signature page hereto (each, a
"Holder" and, collectively, the "Holders").
WHEREAS, the Company, the Holders, Perficient Compete, Inc. and
Compete Inc. are parties to that certain Agreement and Plan of Merger dated as
of February 16, 2000 (the "Merger Agreement"); and
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Merger Agreement, the Company has agreed to grant the
Holders the rights provided hereunder with respect to the shares of its common
stock, par value $0.001 per share ("Common Stock"), issued by the Company to the
Holders in accordance with the terms and subject to the conditions of the Merger
Agreement.
NOW, THEREFORE, the parties have agreed as follows:
1. Definitions.
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(a) The term "Commission" means the Securities and Exchange
Commission.
(b) The term "Other Securities" means at any time those shares
of Common Stock which do not constitute Primary Securities or Registrable
Securities.
(c) The term "Person" means a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (by
conversion or otherwise, but disregarding any legal or other restrictions upon
the exercise of such right), whether or not such acquisition has actually been
effected.
(d) The term "Primary Securities" means at any time the
authorized but unissued shares of Common Stock or shares of Common Stock held by
the Company in its treasury.
(e) The term "Registrable Securities" means the Common Stock
issued to Holders pursuant to the Merger Agreement. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) all of such securities may be distributed by a Holder to the
public pursuant to Rule 144(k) (or any successor provision) under the Securities
Act within a thirty (30) day period, (c) such securities shall have been
otherwise transferred, new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities
under the Securities Act or any similar state law then in force, or (d) such
securities shall have ceased to be outstanding.
(f) The term "Registration Expenses" means all expenses incident
to the Company's performance of or compliance with this Agreement, including,
without limitation, all registration, filing and NASD fees, all stock exchange
listing fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort letters" required by or incident to such performance and
compliance, premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered and any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
any Holder's Registrable Securities pursuant to the shelf registration statement
and the expenses of any separate fees for counsel for such Holder, provided
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that, in any case where Registration Expenses are not to be borne by the
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Company, such expenses shall not include salaries of the Company's personnel or
general overhead expenses of the Company, premiums or other expenses relating to
liability insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally prepared by
the Company in the ordinary course of its business or which the Company would
have incurred in any event.
(g) The term "Securities Act" means the Securities Act of 1933,
as amended, or any successor law.
(h) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Merger Agreement.
2. Certain Rights of the Holders.
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(a) Demand Registration.
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(1) At any time and from time to time beginning on the one-
year anniversary of the Closing Date (as defined in the Merger Agreement) and
ending on the ten-year anniversary of such Closing Date, any Holder(s) holding
no less than fifty percent (50%) of the Registrable Securities (or, with respect
to a second Demand Registration hereunder, fifty percent (50%) of the remaining
Registrable Securities), shall have the right to require the Company to file a
registration statement under the Securities Act covering all or any part of
their respective Registrable Securities, by delivering a written request
therefor to the Company specifying the number of Registrable Securities to be
included in such registration by such Holder(s), a price range acceptable to
such Holder(s) for the sale of such Registrable Securities and the intended
method of distribution thereof. All such requests pursuant to this Section 2(a)
are referred to herein as "Demand Registration Requests" and the registrations
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so requested are referred to herein as "Demand Registrations" and, with respect
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to any Demand Registration, the Holder(s) making such demand for registration
being referred to as the "Initiating Holder". As
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promptly as practicable, but no later than 10 Business Days after receipt of a
Demand Registration Request, the Company shall give written notice (the
"Demand Exercise Notice") of such Demand Registration Request to all Holders
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of record of Registrable Securities. Upon receipt of the Demand Exercise Notice,
each Other Holder shall have 10 Business Days from the date of receipt to
deliver a written request to the Company asking that such Other Holder's
Registrable Securities be included in the registration statement. Such written
request by the Other Holder shall include the number of Registrable Securities
held by such Other Holder that he desires to be included in the registration
statement. The Company shall include in a Demand Registration (i) the
Registrable Securities of the Initiating Holder, (ii) the Registrable Securities
of any Other Holders that shall have made a written request to the Company for
inclusion thereof in such registration (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by such Other
Holders) within 30 days after the receipt of the Demand Exercise Notice and the
Primary Securities and Other Securities of the Company requested to be included
in such registration by holders of such Other Securities and (iii) any Primary
Securities the Company wishes to register.
The Company shall, as expeditiously as practicable following a Demand
Registration Request, use its best efforts to (i) prepare, file and cause to
become effective registration of the Registrable Securities on Form S-1, Form
SB-2 or Form S-3 (if available) or any successor form promulgated by the SEC
pursuant to this Section 2(a)(A), and (ii) if requested by the Initiating
Holder, request acceleration of the effective date of the registration statement
relating to such registration.
(2) The rights of Holders of Registrable Securities to
request Demand Registrations pursuant to this Section 2(a) are subject to the
following limitations:
(i) the Company shall not be required to take any action
to effect any Demand Registration after it has effected two
(2) such registrations pursuant to this Section 2 (a), and
such registrations have been declared or ordered effective;
provided, if the number of Registrable Securities requested
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to be included in such registration exceeds the number
which, in the opinion of the managing underwriter, can be
sold in such offering within a price range acceptable to the
Initiating Holder and as a result only a pro rata portion of
the Initiating Holder's Registrable Securities representing
less than seventy five percent (75%) of the Registrable
Securities of the Initiating Holder requested by such
Initiating Holder for inclusion are included in the
registration and underwriting pursuant to Section 2(a)(C),
then such registration shall not be deemed to be a Demand
Registration under this Section 2(a);
(ii) the Company shall not be required to take any action
to effect any Demand Registration within the 90-day period
following the effective date of a previous Demand
Registration; and
(iii) If the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the
Company stating that in the good faith
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judgment of the Board of Directors of the Company, it would
be materially detrimental to the Company (including to any
material proposed or planned material transaction involving
the Company) and its stockholders for such registration to
be effected at such time, in which event the Company shall
have the right to defer the filing of the registration
statement for a period of not more than 90 days after
receipt of the request from the Holder under this Section
2(a); provided, however, that the Company shall not utilize
this right more than once in any twelve month period. In
such event, the Holders requesting such Demand Registration
will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not
count as one of the permitted Demand Registrations hereunder
and the Company will pay all Registration Expenses in
connection with such registration.
(3) In the event that a registration pursuant to this
Section 2(a) is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 2(a)(1) above. In such event, the right of any Holder to registration
pursuant to this Section 2(a) shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section 2(a)(3),
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 Company shall (together with all Holders proposing to distribute
their Registrable Securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter(s)
selected for such underwriting by the holders of a majority of the Registrable
Securities covered by such registration statement, but subject to the Company's
reasonable approval. Notwithstanding any other provision of this Section
2(a)(3), if the managing underwriter of any underwritten offering shall advise
the Holders participating in a Demand Registration that the Registrable
Securities covered by the registration statement cannot be sold in such offering
within a price range acceptable to the Initiating Holder, then the Initiating
Holder shall have the right to notify the Company that it has determined that
the registration statement be abandoned or withdrawn, in which event the Company
shall abandon or withdraw such registration statement and such action will not
count as a Demand Registrtion. If a requested registration pursuant to this
Section 2(a) involves an underwritten offering and the managing underwriter
advises the Company that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Company which are
not Registrable Securities) exceeds the number which can be sold in such
offering within a price range reasonably acceptable to the Initiating Holder,
then the Company shall so advise all holders of Registrable Securities and the
number of shares of securities that may be included in the registration and
underwriting shall be allocated among all holders thereof in proportion, as
nearly as practicable, to the respective amounts of securities that were to be
registered by such holders. In the event that the number of Registrable
Securities and Other Securities requested by all holders thereof to be included
in such registration is less than the number which, in the opinion of the
managing underwriter, can be sold, the Company may include in such registration
a number of Primary Securities that the Company proposes to sell up to the
number of securities that, in the opinion of the managing underwriter, can be
sold in such offering within a price
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range acceptable to the Initiating Holder. In the event that the number or
amount of securities sold by holder(s) of Registrable Securities exercising
Demand Registration rights pursuant to this paragraph shall be less than 75% of
the Registrable Securities as to which such Holder(s) requested registration
pursuant to this paragraph by reason of sales by other Persons as set forth in
paragraph, then such registration shall be deemed to be a registration pursuant
to paragraph 2(b) (and the provisions of paragraph 2(b) shall apply and not the
provisions of paragraph 2(a)) and the holder(s) exercising Demand Registration
rights pursuant to this paragraph 2(a) shall be deemed not to have exercised
such rights. To facilitate the allocation of shares in accordance with the above
provisions, the Company or the underwriters may round the number of shares
allocated to any holder to the nearest 100 shares.
(b) Piggyback Registration. (i) If, at any time beginning on the
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one-year anniversary of the Closing Date (as defined in the Merger Agreement)
and ending on the ten-year anniversary of such Closing Date (or at any time
following the Closing Date with respect to a Registration Statement that has
been initially filed (as distinct from an amendment to a previously filed
Registration Statement) following the Closing Date that meets the requirements
of Section 3(c)(ii) hereof), the Company proposes to prepare and file one or
more registration statements or post-effective amendments thereto covering
equity or debt securities of the Company, or any such securities of the Company
held by its shareholders (in any such case, other than in connection with a
merger, acquisition or pursuant to Form S-8 or successor form) (for purposes of
this Section, collectively, the "Registration Statement"), it will give written
notice of its intention to do so by registered mail ("Notice"), at least thirty
(30) business days prior to the filing of each such Registration Statement, to
the Holders. Upon the written request of any Holder (a "Requesting Holder"),
made within twenty (20) business days after receipt of the Notice, that the
Company include any of the Requesting Holder's Registrable Securities in the
proposed Registration Statement, the Company shall use its best efforts to
effect the registration under the Act of the Registrable Securities which it has
been so requested to register ("Piggyback Registration"), at the Company's sole
cost and expense and at no cost or expense to the Requesting Holder provided,
however, that if, in the written opinion of the Company's managing underwriter,
if any, for such offering, the inclusion of all or a portion of the Registrable
Securities requested to be registered, when added to the securities being
registered by the Company or the selling shareholder(s), will exceed the maximum
amount of the Company's securities which can be marketed (A) at a price
reasonably related to their then current market value, or (B) without otherwise
materially adversely affecting the entire offering, then the Company may exclude
from such offering all or a portion of the Registrable Securities which it has
been requested to register in the manner set forth in clause (ii) below.
(ii) If securities are proposed to be offered for sale
pursuant to such Registration Statement by other security holders of the Company
and the total number of securities to be offered by the Requesting Holder and
such other selling security holders is required to be reduced pursuant to a
request from the managing underwriter (which request shall be made only for the
reasons and in the manner set forth above) the aggregate number of Registrable
Securities to be offered by the Requesting Holder pursuant to such Registration
Statement shall equal the number which bears the same ratio to the maximum
number of securities that the underwriter believes may be included for all the
selling security holders (including the Requesting Holder) as the original
number of Registrable Securities proposed to
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be sold by the Requesting Holder bears to the total original number of
securities proposed to be offered by the Requesting Holder and the other selling
security holders.
(iii) If any Registrable Securities requested to be
included in a Piggyback Registration are not so included because of the
operation of the proviso of the first paragraph of this Section 2(b), then the
holders of such excluded Registrable Securities shall have the right to require
the Company, at its expense, to prepare and file another Registration Statement
under the Act covering such Registrable Securities, provided that, if the
underwriter so requests, such Registrable Securities shall not be sold until the
expiration of 90 days from the effective date of the offering that gave rise to
the piggyback registration rights that are the subject of this Section 2(b).
(iv) Notwithstanding the provisions of this Section 2(b),
the Company shall have the right at any time after it shall have given written
notice pursuant to this Section 2(b) (irrespective of whether any written
request for inclusion of such securities shall have already been made) to elect
not to file any such proposed Registration Statement, or to withdraw the same
after the filing but prior to the effective date thereof.
(c) The Company will not file any registration statement under the
Securities Act, unless it shall first have given to each Holder, at least 30
days prior written notice thereof. If any such registration statement refers to
any Holder by name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right within such 30 day period to require (i)
the insertion therein of language, in form and substance satisfactory to such
Holder to the effect that the holding by the Holder of such securities does not
necessarily make the Holder a "controlling person" of the Company within the
meaning of the Securities Act and is not to be construed as a recommendation by
such Holder of the investment quality of the Company's debt or equity securities
covered thereby and that the Holder will assist in meeting any future financial
requirements of the Company or (ii) in the event that such reference to such
Holder by name or otherwise is not required by the Securities Act or any rules
and regulations promulgated thereunder, the deletion of the reference to the
Holder. If such Holder does not respond within such 30 day period, the Company
may proceed with the filing.
(d) From and after the Closing Date, the Company shall only enter
into an agreement granting any holder or prospective holder of any securities of
the Company registration rights with respect to such securities that are
superior to the registration rights granted hereunder if the Holders' respective
position following such grant is no less favorable than that of the officers,
directors and beneficial owners of more than 5% of the outstanding securities of
the Company.
3. Registration Procedures.
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(a) If the Company is required to effect the registration of the
Registrable Securities under the Securities Act as provided in Section 2, the
Company shall, as expeditiously as possible (and in all events subject to
Section 2):
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(i) prepare and file with the Commission the requisite
registration statement to effect such registration (including such audited
financial statements as may be required by the Securities Act or the rules and
regulations promulgated thereunder) and thereafter cause such registration
statement to become and remain effective, provided, however, before filing a
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registration statement or prospectus or any amendments or supplements thereto
with the Commission, the Company will furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement ("Holders' Counsel") copies of all such documents proposed to be filed
which documents will be subject to the review and comment of such counsel and
holders (which shall be provided in a timely manner);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
sooner of (i) such time as all of such Registrable Securities have been disposed
of in accordance with the intended methods of disposition by each Holder set
forth in such registration statement or (ii) six months from the date of
effectiveness of the registration statement;
(iii) furnish to each Holder (or underwriter, if any, of the
securities being sold by such Holder) such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents as, such Holder (and each such underwriter, if any) may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities laws or blue sky laws of such
jurisdictions as any Holder (and any underwriter of the Registrable Securities
being sold) shall reasonably request, to keep such registrations or
qualifications in effect for so long as such registration statement remains in
effect, and take any other action which may be necessary or advisable to enable
such Holder (and underwriter, if any) to consummate the disposition in such
jurisdictions of the Registrable Securities except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified or to
consent to general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable each
Holder to consummate the disposition of such Registrable Securities;
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(vi) notify each Holder and Holders' Counsel (and the managing
underwriter or underwriters, if any) promptly and confirm such advice in writing
promptly thereafter:
(A) when the registration statement, the prospectus or
any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed, and, with respect to the registration
statement or any post-effective amendment thereto, when the same has become
effective;
(B) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for additional
information;
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations and warranties
of the Company cease to be true and correct;
(E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any jurisdiction or
the initiation or threat of any proceeding for such purpose;
(vii) notify each Holder and Holders' Counsel, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon 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 any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any Holder promptly prepare and furnish to such Holder (and each
underwriter, if any) a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(viii) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration statement;
(ix) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the Commission and will furnish to each
Holder at least five business days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus and shall
not file any thereof to which any Holder shall have reasonably objected
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on the grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(x) make available for inspection by any Holder, any
underwriter participating in any disposition pursuant to the registration
statement and any attorney or accountant retained by such Holder or such
underwriter (each, an "Inspector"), all financial and other records, pertinent
corporate documents and properties of the Company (the "Records"), and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration in order to
permit a reasonable investigation within the meaning of Section 11 of the
Securities Act;
(xi) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement;
(xii) enter into such agreements and take such other actions as
any Holder shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(xiii) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on which any
of the securities of the same class as the Registrable Securities are then
listed; and
(xiv) use its best efforts to provide a CUSIP number for the
Registrable Securities, not later than the effective date of the registration
statement.
(b) Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in subdivision
(vii) of this Section, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section.
(c) Notwithstanding anything to the contrary in this Agreement, the
Holders covenant and agree that in the event of a private or public offering of
Common Stock, the Holders shall be subject to the same restrictions on
transferability or lock-up of shares of Common Stock as the underwriter of any
such offering or any executive officer of the Company shall require of the
executive officers of the Company. In addition, each Holder agrees that for a
period beginning on the Closing Date (as defined in the Merger Agreement) and
ending one (1) year therefrom, he will not, directly or indirectly, (a) sell,
offer to sell, contract to sell, grant any option to sell, any shares of Common
Stock received hereunder or securities convertible into or exchangeable for
shares of Common Stock; (b) propose, or publicly disclose an intent to propose,
any of the foregoing; or (c) assist or advise any other persons or entities in
connection with the foregoing. Notwithstanding the above, this prohibition shall
not apply to (i) private sales by the estate of any Holder upon the death of a
Holder but only to the extent of estate tax liability related to the transfer of
the shares upon the death of the Holder, and (ii) sales upon the exercise of
piggy-back registration rights, if and only if, current shareholders of the
Company
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other than Xxxx Xxxxxxxxx, who are officers of directors of the Company,
participate in any such public offering, subject to the restrictions included
herein. In addition, in no event shall any Holder have any demand, piggy-back or
other registration rights hereunder in connection with the filing of a
registration statement or any amendments thereto relating to the registration of
any securities of the Company that is initially filed with the Commission prior
to the Closing Date.
4. Indemnification by the Company.
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(a) General Rights.
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(i) In the event of any registration of any securities
of the Company under the Securities Act, the Company will, and hereby does agree
to, indemnify and hold harmless in the case of any registration statement of the
Company, the Holders and any underwriter including the respective directors,
officers, agents and controlling persons (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act), if any, of each Holder
and such underwriters against any losses, claims, damages, liabilities or
expense, joint or several, to which the Holder (or any underwriter) or any such
director, officer, agent or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, 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 the Company will
reimburse each Holder (or any underwriter) and each such director, officer,
agent and controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding, provided that the Company shall
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not be liable in such case to the extent that any such loss, claim, damage,
liability or action or proceeding in respect thereof or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
exclusively in reliance upon and in conformity with information furnished to the
Company through an instrument duly executed by each Holder, specifically stating
that it is for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Holder (or underwriter, if any) or any such director, officer, agent or
controlling person and shall survive the transfer of such securities by such
Holder.
(ii) Each Holder jointly and severally will, and hereby
does agree to indemnify and hold harmless the Company and the directors,
officers, agents and controlling persons, if any, of the Company against any
losses, claims, damages, liabilities or expense to which the Company and the
directors, officers, agents and controlling persons, if any, of the Company may
become subject under the Securities Act insofar as such losses, claims, damages,
liabilities or expense arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which the
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Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, 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, in each case to the extent (and only to the
extent) that such loss, claim, damage, liability or expense occurs in exclusive
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; provided that
such Holder shall be liable under this paragraph for only that amount of losses,
claims, damages, liabilities or expense as does not exceed the proceeds to such
Holder as a result of the sale of Registrable Securities pursuant to such
registration. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer, agent or controlling person.
(b) Notices of Claims, etc. Promptly after receipt by an
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indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
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as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section, except to the extent that the
indemnifying party is actually prejudiced in a material manner by such failure
to give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that the indemnifying party may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action 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, or a covenant not to xxx, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(c) Other Indemnification. Indemnification similar to that
---------------------
specified in the preceding subdivisions of this Section (with appropriate
modifications) shall be given by the Company and the Holders with respect to any
required registration or other qualification of securities under any Federal or
state law or regulation of any governmental authority, other than the Securities
Act.
(d) Indemnification Payments. The indemnification required by
------------------------
this Section shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
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(e) Contribution. If the indemnification provided for in the
------------
preceding subdivisions of this Section is unavailable to an indemnified party in
respect of any loss, claim, damage, liability or expense 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 loss, claim, damage, liability or expense (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Holders or underwriter, as the case may be, on the other
from the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Holders or underwriter, as the case may be, on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or expense, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Holders or underwriter, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission to state a material fact relates to information
supplied by the Company, by any Holder or by the underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, provided that the foregoing contribution
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agreement shall not inure to the benefit of any indemnified party if
indemnification would be unavailable to such indemnified party by reason of the
provisions contained in the first sentence of subdivision (a) of this Section
and in no event shall the obligation of any indemnifying party to contribute
under this subdivision (e) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this Section had been available
under the circumstances. Notwithstanding the provisions of this subdivision (e),
neither the Holders nor the underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any Holder, the net
proceeds received by such Holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered by the
public exceeds, in either such case, the amount of any damages that such Holder
or underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
5. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company
--------------------------------------------
will not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the Holders to include
Registrable Securities in a registration statement undertaken pursuant to this
Agreement or which would adversely affect the ability of the Holders to sell
such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
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(c) Amendments and Waivers. Except as otherwise provided
----------------------
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, if and only if the Company has obtained the written consent of
the Holders.
(d) Successors and Assigns. This Agreement may not be assigned
----------------------
by the Holders. All covenants and agreements in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or holders
of Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities.
(e) Jurisdiction and Governing Law. The Company and the
------------------------------
Holders each hereby consent to personal jurisdiction in any action brought with
respect to this Agreement and the transactions contemplated hereunder in any
federal or state court within the State of New York. This Agreement shall be
governed by and construed in accordance with the law of the State of New York
without giving effect to conflicts of law principles thereof.
(f) Construction. Section headings of this Agreement are for
------------
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
(g) Severability. In the event that any provision hereof
------------
would, under applicable law, be invalid or enforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement which shall remain in full force and effect.
(h) Joint Agreement. The provisions of this Agreement and each
---------------
document delivered pursuant hereto shall be deemed to be the joint effort of
each of the parties hereto and shall not be construed more severely or strictly
against any one or more parties.
(i) Notices. Except as otherwise provided in this Agreement,
-------
all notices, requests and other communications shall be in writing and shall be
given to the Holder addressed to it in the manner set forth in the Merger
Agreement or at such other address as any Holder shall have furnished to the
Company in writing, and to the Company, to the attention of its Chief Executive
Officer, or at such other address, or to the attention of such other officer, as
the Company shall have furnished to the Holders. Each such notice, request or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including, without
limitation, by air courier), when delivered at the address specified above,
provided that any such notice, request or communication shall not be effective
--------
until received.
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(j) Counterparts. This Agreement may be executed
------------
simultaneously in counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
(k) Underwriter Holdback. The Holders agree that if the Company
--------------------
proposes to offer securities pursuant to a Registration Statement under the
Securities Act pursuant to a firm commitment underwritten public offering, then
the Holders will, if requested by the Underwriter of such proposed public
offering, enter into such agreement that may be requested, agreeing not to sell,
pledge, hypothecate or otherwise dispose of any Registrable Securities for the
same period of time that is requested of officers, directors and principal
stockholders of the Company.
(1) Specific Performance. The parties hereto acknowledge that
--------------------
there would be no adequate remedy at law if any party fails to perform any of
its other obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction. Any remedy hereunder is subject to certain equitable defenses and
to the discretion of the court before which any proceedings therefor may be
brought.
(m) Entire Agreement. This Agreement embodies the entire
----------------
agreement between the parties and understanding between the Company and the
Holders relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PERFICIENT, INC.
By: ________________________________
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
------------------------------------
Xxx Xxxxxxxx, individually
------------------------------------
Xxxx Xxxxxx, individually
------------------------------------
Xxxxxx X. Xxxxxxxx, individually
------------------------------------
Xxxxxx Xxxxxxxx, individually
------------------------------------
Xxxx Xxxxxxxx, individually
------------------------------------
Xxxxxxxx Xxxxxxx, individually
------------------------------------
Xxxxxx Xxxxx, individually
15
------------------------------------
Xxxx Xxxxxxx, individually
------------------------------------
Xxxxxxx Xxxxx, individually
16
