EXHIBIT 4.1
REGISTRATION RIGHT AGREEMENT - ALADDIN SYSTEMS HOLDINGS, INC
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of April 19, 2004, by and between International Microcomputer Software, Inc.,
a California corporation (the "Company"), and Aladdin Systems Holdings, Inc., a
Nevada corporation (the "Seller").
WHEREAS, pursuant to the terms of a Stock Purchase Agreement, dated as of
January 20, 2004, by and between the Seller and the Company (the "Purchase
Agreement"), the Company has agreed, as partial consideration for the
acquisition by the Company from the Seller of 100% of the outstanding shares of
capital stock of Aladdin Systems, Inc., to issue to the Seller two million three
hundred seventeen thousand eight hundred eighty one (2,317,881) shares of
unregistered common stock, no par value per share, of the Company (the
"Shares"); and
WHEREAS, it is a condition to the closing of the Purchase Agreement that the
Company and the Seller execute this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS
As used in this Agreement:
"Effectiveness Date" means with respect to the Registration Statement the
earlier of the 90th day following the Filing Date and the date which is within
five (5) days of the date on which the Commission informs the Company that the
Commission (i) will not review the Registration Statement or (ii) that the
Company may request the acceleration of the effectiveness of the Registration
Statement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 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 any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
the term "Registrable Securities" means (i) the Shares and (ii) the shares of
the Company's common stock issuable upon any stock split, stock dividend,
recapitalization or similar event with respect to any such Shares.
"Registration Expenses" shall mean all expenses incurred by the Company in
compliance with Section 2 hereof, whether or not any registration statement is
filed or becomes effective and whether or not any Registrable Securities are
sold pursuant to such registration statement, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, 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 Company, which shall be paid in any
event by the Company);
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and all fees and disbursements
of counsel for the Seller, if any, relating to the sale or disposition of the
Registrable Securities pursuant to any registration statement filed pursuant to
this Agreement.
COMPANY REGISTRATION
"Required Registration. On or prior to the 90th day after closing date (the
"Filing Date") the Company shall prepare and file with the Commission a
registration statement (the "Registration Statement") covering for resale all
Registrable Securities. The Registration Statement shall be on Form SB-2 (except
if the Company is not then eligible to register for resale the Registrable
Securities on Form SB-2, in which case such registration shall be on another
appropriate form in accordance herewith). The Company shall use its best efforts
to cause the Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in any
event prior to the Effectiveness Date.
Underwriting. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Seller in the written notice given pursuant to Section 2(a)(i). In
such event, the right of the Seller to registration pursuant to this Section 2
shall be conditioned upon the Seller's participation in such underwriting and
the inclusion of the Seller's Registrable Securities in the underwriting to the
extent provided herein. The Seller shall (together with the Company and any
other stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company. Notwithstanding any
other provision of this Section 2, if the representative determines that
marketing factors require a limitation on the number of shares to be
underwritten, the representative may limit the number of Registrable Securities
to be included in the registration and underwriting. The Company shall so advise
all holders of securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated in the following manner: The securities of the Company held
by the Seller and any other stockholders of the Company participating in such
registration (other than securities held by holders who by contractual right
demanded such registration) shall be excluded from such registration and
underwriting on a pro rata basis (based on the number of shares held) to the
extent required by such limitation. If the Seller disapproves of the terms of
any such underwriting, the Seller may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Agreement shall be borne by the
Company, and any and all Selling Expenses shall be borne by the Seller.
REGISTRATION PROCEDURES
In connection with the Company's registration obligations hereunder, the Company
shall:
Prepare and file with the Commission on or prior to the Filing Date, a
Registration Statement on Form SB-2 (or if the Company is not then eligible to
register for resale the Registrable Securities on Form SB-2 such registration
shall be on another appropriate form in accordance herewith) in accordance with
the method or methods of distribution thereof as specified by the Seller (except
if otherwise directed by the Seller), and cause the Registration Statement to
become effective and remain effective as provided herein.
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for a period of one hundred twenty (120) days; provided, however,
that (i) such 120-day period shall be extended for a period of time equal to the
period during which the Seller refrains from selling any securities included in
such registration in accordance with the provisions set forth in Section 8
hereof (together the "Effectiveness Period"); (ii) cause the related prospectus
to be amended or supplemented by any required prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; (iii) respond as
promptly as possible to any comments received from the Commission with respect
to the Registration Statement or any amendment thereto and as promptly as
possible provide the Seller true and complete copies of all correspondence from
and to the Commission relating to the Registration Statement; and (iv) comply in
all material respects with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Seller thereof set forth in the
Registration Statement as so amended or in such prospectus as so supplemented.
Notify the Seller of Registrable Securities to be sold and any Special Counsel
as promptly as possible (and, in the case of (i)(A) below, not less than five
(5) business days prior to such filing) and (if requested by the Seller) confirm
such notice in writing no later than one (1) business day following the day
(i)(A) when a prospectus or any prospectus supplement or post-effective
amendment to the Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review" of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement and (C) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to the Registration Statement or prospectus or for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) if at any time any of the representations and warranties of the
Company contained in any agreement contemplated hereby cease to be true and
correct in all material respects; (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (vi) of the occurrence of any event that makes any statement made
in the Registration Statement or prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires any revisions to the Registration Statement, prospectus or other
documents so that, in the case of the Registration Statement or the prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
The Company shall promptly furnish to Seller's counsel, if any, without charge,
(i) any correspondence from the Commission or the Commission's staff to the
Company or its representatives relating to any Registration Statement and (ii)
promptly after the same is prepared and filed with the Commission, a copy of any
written response to the correspondence received from the Commission.
Cooperate with the Seller to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to a
Registration Statement, which certificates shall be free of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as the Seller may request at least two (2) Business
Days prior to any sale of Registrable Securities.
INDEMNIFICATION
The Company will, notwithstanding any termination of this Agreement, indemnify
the Seller and each of its officers, directors, agents, brokers, investment
advisors and employees, and each person who controls any such Seller, the
officers, directors, agents and employees of each such controlling person, to
the fullest extent permitted by applicable law with respect to each registration
which has been effected pursuant to this Agreement, and each underwriter, if
any, and each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or 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 not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse the Seller and its directors and officers for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action; provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by the Seller
or underwriter. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of an Indemnified Party (as defined in
Section 5(c) hereof) and shall survive the transfer of the Registrable
Securities by the Seller.
The Seller will, if Registrable Securities held by it are included in the
securities as to which such registration, qualification or compliance is being
effected, indemnify the Company, each of its directors and officers and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter, each other
stockholder of the Company participating in such registration, and each of their
respective officers, directors, and partners, and each person controlling such
other stockholder, in each case, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other document
made by the Seller, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
by the Seller therein not misleading, and will reimburse the Company and such
other stockholders, directors, officers, members, partners, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, 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, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by the Seller.
Each party entitled to indemnification under this Section 5 (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 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 any litigation resulting therefrom, 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
party's expense (unless the Indemnified Party shall have reasonably concluded
that there may be a conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses of counsel
shall be at the expense of the Indemnifying Party), 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 Agreement unless
the Indemnifying Party is materially prejudiced thereby. 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. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
If the indemnification provided for in this Section 5 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect to
any loss, liability, claim, damage or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense 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, liability, claim, damage or
expense, 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 anything to the contrary contained herein, the Seller shall be
liable or required to contribute under this Section 5(d) only that amount as
does not exceed the net proceeds to the Seller as a result of the sale of
Registrable Securities pursuant to the Registration Statement. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with any underwritten public offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
The foregoing indemnity agreement of the Company and the Seller is subject to
the condition that, insofar as they relate to any loss, claim, liability or
damage made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any underwriter if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
INFORMATION BY THE SELLER
The Seller shall furnish to the Company such information regarding the Seller
and the distribution proposed by the Seller as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
RULE 144 REPORTING
With a view to making available the benefits of certain rules and regulations of
the SEC which may permit the sale of restricted securities to the public without
registration, the Company agrees to:
make and keep public information available as those terms are understood
and defined in Rule 144 at all times;
use its best efforts to file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
so long as the Seller owns any Registrable Securities, furnish to the
Seller upon request a written statement by the Company as to its compliance with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as the Seller may
reasonably request and as is necessary for the Seller to avail itself of any
rule or regulation of the SEC allowing the Seller to sell any such securities
without registration. The Company further covenants that it will take such
further action as the Seller may reasonably request, all to the extent required
from time to time to enable such Seller to sell the Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act.
"MARKET STAND-OFF" AGREEMENT
The Seller agrees, if requested by the Company and an underwriter of common
stock (or other securities) of the Company, not to sell or otherwise transfer or
dispose of any common stock (or other securities) of the Company held by the
Seller during the 90-day period following the effective date of a registration
statement of the Company filed under the Securities Act. If requested by the
underwriters, the Seller shall execute a separate agreement to the foregoing
effect. The Company may impose stop-transfer instructions with respect to the
shares (or securities) subject to the foregoing restriction until the end of
said 90-day period. The provisions of this Section 8 shall be binding upon any
transferee who acquires Registrable Securities, whether or not such transferee
is entitled to the registration rights provided hereunder.
TERMINATION
The registration rights set forth in this Agreement shall not be available to
the Seller if, in the opinion of counsel to the Company, all of the Registrable
Securities then owned by the Seller could be sold in any 90-day period pursuant
to Rule 144 under the Securities Act (without giving effect to the provisions of
Rule 144(k)).
FAILURE TO FILE REGISTRATION STATEMENT; REMEDIES.
The Company and the Seller agree that the Seller will suffer damages if the
Registration Statement is not filed on or prior to the Filing Date and not
declared effective by the Commission on or prior to the Effectiveness Date and
maintained in the manner contemplated herein during the Effectiveness Period or
if certain other events occur. The Company and the Seller further agree that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, other than as permitted by Section 8 hereof, if (i) the
Registration Statement is not filed on or prior to the Filing Date, or is not
declared effective by the Commission on or prior to the Effectiveness Date, or
(ii) the Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 of the Securities Act within five (5) business days of
the date that the Company is notified (orally or in writing, whichever is
earlier) by the Commission that a Registration Statement will not be "reviewed,"
or is not subject to further review, or (iii) the Registration Statement is
filed with and declared effective by the Commission but thereafter ceases to be
effective as to all Registrable Securities at any time prior to the expiration
of the Effectiveness Period, without being succeeded immediately by a subsequent
Registration Statement filed with and declared effective by the Commission, or
(iv) trading in the Common Stock shall be suspended (except pursuant to
suspension of trading on the OTC Bulletin Board, or other exchange on which the
Company's stock is then listed) or if the Common Stock is delisted from the OTC
Bulletin Board for any reason for more than three (3) business days in the
aggregate, or (vi) the Company breaches any material covenant or other material
term or condition to this Agreement, then the Company shall pay in cash as
liquidated damages for such failure and not as a penalty to the Seller an amount
per month (the "Liquidated Damages") equal to five percent (5%) of the value of
the Registrable Securities. Payments to be made pursuant to this Section 10(a)
shall be due and payable immediately upon demand. The parties agree that the
Liquidated Damages represents a reasonable estimate on the part of the parties,
as of the date of this Agreement, of the amount of damages that may be incurred
by the Seller if the Registration Statement is not filed on or prior to the
Filing Date or has not been declared effective by the Commission on or prior to
the Effectiveness Date and maintained in the manner contemplated herein during
the Effectiveness Period.
In the event of a breach by the Company or by the Seller of any of their
obligations under this Agreement, the Seller or the Company, as the case may be,
in addition to being entitled to exercise all rights granted by law and under
this Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and the Seller agree
that monetary damages would not provide adequate compensation for any losses
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
No Inconsistent Agreements. Neither the Company nor any of its subsidiaries has,
as of the date hereof entered into and currently in effect, nor shall the
Company or any of its subsidiaries, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Seller in this Agreement or otherwise conflicts
with the provisions hereof. Without limiting the generality of the foregoing, at
no time during the Effectiveness Period shall the Company, without first having
obtained the written consent of the Seller, grant to any person or entity the
right to request the Company to register any securities of the Company under the
Securities Act unless the rights so granted are subject in all respects to the
prior rights in full of the Seller set forth herein, and are not otherwise in
conflict with the provisions of this Agreement."
SECTION 13. MISCELLANEOUS
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed entirely within such State without regard to principles of conflicts
of law.
Paragraph and Section Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given (a) when delivered personally to the
recipient, (b) when sent to the recipient by telecopy (receipt electronically
confirmed by sender's telecopy machine) if during normal business hours of the
recipient, otherwise on the next business day, (c) one business day after the
date when sent to the recipient by reputable express courier service (charges
prepaid), or (d) seven business days after the date when mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications shall be sent to the Seller and
to the Company at the addresses indicated on the signature page below, or to
such other address as either party hereto may, from time to time, designate in
writing delivered pursuant to the terms of this Section.
Amendments. The terms, provisions and conditions of this Agreement may not be
changed, modified or amended in any manner except by an instrument in writing
duly executed by both of the parties hereto.
Assignment. Neither this Agreement nor any of the rights, duties, or obligations
of any party hereunder may be assigned or delegated (by operation of law or
otherwise) by either party hereto except with the prior written consent of the
other party hereto.
Counterparts. For the convenience of the parties, any number of counterparts of
this Agreement may be executed by any one or more parties hereto, and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which shall constitute, and shall be deemed to constitute, in the aggregate
but one and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this Registration
Rights Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
SELLER - ALADDIN SYSTEMS HOLDINGS, INC. COMPANY - INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
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President Chief Executive Officer
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