Exhibit 4
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REGISTRATION RIGHTS AGREEMENT
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MARCH 25, 1999
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CONFIDENTIAL
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT dated as of March 25, 1999 among FACTUAL
DATA CORP., a Colorado corporation (the "Company"), and Purchasers to be listed
on Exhibit A (collectively, the "Purchasers" or individually, a "Purchaser")
under that certain Share Purchase Agreement between the Company and the
Purchasers dated as of March 25, 1999 (the "Share Purchase Agreement").
The parties agree as follows:
Section 1. Definitions. For purposes of this Agreement:
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(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of
such registration statement or document;
(b) The term "Registrable Securities" means (i) the Shares, as defined
under the Share Purchase Agreement, between the Company and Purchasers
(collectively, the "Shares"), and (ii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other
distribution, merger, consolidation, recapitalization, reclassification or
similar transaction with respect to, or in exchange for or in replacement
of, the Shares, in each case held by any Holder (as defined in clause (c)
below);
(c) The term "Holder" or "Holders" means Purchasers and any of their
successors or assigns which hold Registrable Securities; and
(d) The term "Closing Date" is used herein as defined in Article II of
the Share Purchase Agreement.
Section 2. Registration Rights.
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(a) Within 90 days after the Closing Date, the Company shall file
with the Securities and Exchange Commission ("SEC") a registration
statement sufficient to permit the public offering and sale of the
Registrable Securities, and will use its best efforts through its officers,
directors, auditors and counsel to cause such registration statement to
become effective as promptly as practicable. The Company shall be
obligated to file such post effective amendments or supplements as may be
necessary to enable the Holders to deliver prospectuses which comply with
the Securities Act for a period of two years from such effective date. The
Registration Expenses (defined below) of this registration statement shall
be borne by the Company. In addition to the registration provided for
hereinabove, the Holders of the Registrable Securities who, in the
aggregate, own a majority of the total number of Shares issued or issuable
upon exercise of the Registrable Securities may request that the Company
prepare and file a
registration statement to permit the public offering and sale of the
Registrable Securities on one additional occasion. The Registration
Expenses of such additional registration statement shall be borne by the
holders of Registrable Securities included in such registration. Holders of
the Registrable Securities who, in the aggregate, own a majority of the
total number of Shares issued or issuable upon exercise of the Registrable
Securities may also request that the Company prepare and file a
registration statement on Form S-2 or S-3, if available, to permit the
public offering and sale of Registrable Securities (each, a "Short Form
Registration"). The Holders may request a maximum of three (3) Short Form
Registrations. The Registration Expenses of any such Short Form
Registration shall be borne by the Company.
(b) Any such registration of Registrable Securities requested pursuant
to this Section 2 shall be referred to as a Demand Registration. No Demand
Registration shall be deemed to have been effected if (i) such registration
statement, after it has become effective, is the subject of any stop order,
injunction or other order or requirement of the SEC or other governmental
agency or court for any reason not primarily attributable to the selling
Holders of Registrable Securities, (ii) the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in
connection with such registration statement are not satisfied, other than
by reason of a failure on the part of the selling Holders of Registrable
Securities; or (iii) the holders of Registrable Securities are not able to
register and sell at least ninety percent (90%) of the Registrable
Securities requested to be included in such registration.
(c) If at any time or from time to time during the time period
applicable to Demand Registrations any of the Holders of the Registrable
Securities covered by a registration statement desire to sell Registrable
Securities in a public offering, the investment banker or investment
bankers that will manage the offering will be selected by the Holders of at
least a majority of the Registrable Securities included in such offering;
provided that the selection of any such investment banker or investment
bankers is subject to consent by the Company, which consent shall not be
unreasonably withheld.
(d) Whenever the Company shall effect a registration pursuant to this
Section 2 in connection with a public offering of Registrable Securities,
securities other than Registrable Securities shall be reduced to the extent
determined necessary by the managing underwriter of such offering if such
managing underwriter shall have advised the selling Holders in writing
(with a copy to the Company) that, in their opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold within a price range acceptable to the selling Holders of
a majority of the Registrable Securities requested to be included in such
registration. If no such notice or letter is provided, the Company may
include Common Stock for its own account or for the account of other
shareholders of the Company, if and to the extent consented to by the
Holders of at least a majority of the Registrable Securities included in
such offering.
(e) In the event of a Demand Registration, the Company, if requested
by the Holders of at least a majority of the Registrable Securities to be
included in such Demand
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Registration, (i) shall agree not to, and shall cause its executive
officers and directors not to, effect any public sale or distribution of
its Common Stock or similar securities or securities convertible into, or
exchangeable or exercisable for, Common Stock during the 90-day period
following the effective date of a registration statement relating to a
public offering of Registrable Securities if the managing underwriter or
underwriters determine such public sale or distribution would have a
material adverse effect on such offering and (ii) shall (x) cause each
securityholder of the Company's privately placed equity securities issued
in connection with a financing transaction involving at least 5% of the
Company's then outstanding equity securities at any time after the date
hereof and (y) use its reasonable best efforts to cause each other
securityholder of the Company owning at least 10% of the Company's then
outstanding equity securities (other than a securityholder permitted to
file a Schedule 13G under the Exchange Act) to agree, not to effect a
public sale or distribution of the Common Stock during the 90-day period
following the effective date of a registration statement relating to a
public offering of the Registrable Securities if the managing underwriter
or underwriters determine such public sale or distribution would have a
material adverse effect on such offering.
(f) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements
of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company
are then listed or on, the NASD automated quotation system.
(g) In connection with each Demand Registration and each Piggyback
Registration (defined below), the Company shall reimburse the holders of
Registrable Securities included in such registration for the reasonable
fees and disbursements of one counsel chosen by the holders of a majority
of the Registrable Securities included in such registration and for the
reasonable fees and disbursements of each additional counsel retained by
any holder of Registrable Securities for the purpose of rendering a legal
opinion on behalf of such holder in connection with any underwritten Demand
Registration or Piggyback Registration.
(h) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration
hereunder shall pay its proportionate share of all Registration Expenses
based upon the ratio of the aggregate
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selling price of each holder's securities included therein to the aggregate
selling price of all securities to be so registered.
Section 3. Piggyback Registration
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(a) Participation. Subject to Section 3(b) below, if at any time from
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and after the date hereof, the Company proposes to file or files a
registration statement under the Securities Act with respect to any
offering of securities of the same type as the Registrable Securities for
its own account (other than a registration statement on Form S-8 or Form S-
4 or any successor form thereto), or for the account of any securityholder
of securities of the same type as the Registrable Securities, then, as
promptly as practicable, the Company shall give written notice of such
proposed filing to each Holder of Registrable Securities and such notice
shall offer the Holders of Registrable Securities the opportunity to
include in such registration such number of Registrable Securities as each
such Holder may request (a "Piggyback Registration"), provided that, any
Holder of Registrable Securities may only participate in a Piggyback
Registration to the extent (based on the number of shares included) that
the Holder of a majority of the Registrable Securities elects to
participate. The Company shall include in such registration statement all
Registrable Securities requested within 20 days after the receipt of any
such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder) to be included in the
registration for such offering pursuant to a Piggyback Registration. Each
Holder electing to participate in such Piggyback Registration shall do so
pursuant to the terms of such proposed registration and shall execute such
usual and customary custody agreements, powers of attorney, underwriting
agreements or other documents as are reasonably requested or required by
the Company and any underwriter of such offering; provided, however, that
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such Holders shall not be required to represent and warrant to, or to
indemnify, any party with respect to any matters other than as to the
Holder's ownership of the Registrable Securities and with respect to any
other information provided by Holder and required to be included in the
registration statement pursuant to SEC rules and regulations. Each Holder
of Registrable Securities shall be permitted to withdraw all or part of
such Holder's Registrable Securities from a Piggyback Registration at any
time prior to the effective date thereof. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all
Piggyback Registrations.
(b) Underwriter's Cutback. The Company shall use its best efforts to
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cause the managing underwriter or underwriters of a proposed public
offering to permit the Registrable Securities requested to be included in
the registration for such offering under Section 3(a) above (the "Piggyback
Securities") to be included on the same terms and conditions as any similar
securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters participating in such offering advises
each of the Holders in writing (with a copy to the Company) that the total
amount of securities requested to be included in such Piggyback
Registration exceeds the amount which can be sold in (or during the time
of) such offering without delaying or jeopardizing the success of the
offering (including the price per share of the securities to be sold),
then,
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after including all shares proposed to be sold by the Company in a Company-
initiated registration, the amount of securities to be offered for the
account of the Holders shall be reduced pro rata with all other holders
participating in such offering on the basis of the number of shares to be
registered by all stockholders participating in such offering; provided,
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however, that the managing underwriter or underwriters may not limit the
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Registrable Securities or other securities to be included in such
Registration to less than 25% of the securities included therein.
Section 4. Registration Procedure. Whenever required under this Agreement
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to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as is reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be required by the rules, regulations or
instructions applicable to the registration form utilized by the Company or
by the Securities Act or rules and regulations otherwise necessary to keep
the registration statement effective for a period of not less than twelve
months (or such shorter period which will terminate when all Registrable
Securities covered by such registration statement have been sold or
withdrawn); and cause the prospectus as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act of 1934 with respect
to the disposition of all securities covered by such registration statement
during the applicable period in accordance with the intended methods of
disposition by the selling Holders thereof set forth in such registration
statement or supplement to the prospectus.
(b) Furnish to the Holders of the Registrable Securities covered by
such registration statement such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of the Registrable Securities owned
by them.
(c) Use its best efforts to register and qualify the securities
covered by such registration statement under such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company has no
obligation to qualify Registrable Securities where such qualification would
cause any unreasonable delay or expenditure by the Company, but the Company
may be required to file a consent to service substantially in the form of
the Uniform Consent to Service of Process Form U-2.
(d) 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
selling Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, (i) at any time when a prospectus relating thereto
covered by such registration
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statement 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; (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; and (iii)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(f) Furnish to each Holder of Registrable Securities on the date that
such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Agreement, 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) an opinion,
dated such date, of the counsel representing the Company 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 to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, 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 to the Holders requesting registration of
Registrable Securities.
(g) Make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of any registration statement covering
Registrable Securities.
(h) Cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters.
(i) Use its best efforts to cause the Registrable Securities covered
by the applicable registration statement to be registered with or approved
by such other foreign governmental agencies or authorities, and the NASD or
any other applicable exchange or regulatory authority, as may be necessary
to enable the seller or selling Holders thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities.
(j) Cause all Registrable Securities covered by the registration
statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed if requested by the
Holders of at least 50% of such Registrable Securities or the managing
underwriters, if any.
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(k) Cooperate and assist in any filings required to be made with the
NASD in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD).
(l) Make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
(m) Permit any holder of Registrable Securities, which holder, in the
Company's sole and exclusive judgment, might be deemed to be an underwriter
or a controlling Person of the Company, to participate in the preparation
of such registration or comparable statement and to require the insertion
therein of material furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included.
Section 5. Furnish Information. The selling Holders shall promptly
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furnish to the Company in writing such reasonable information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
Section 6. Indemnification and Contribution. In the event any Registrable
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Securities are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers and directors of each Holder, any
underwriter (as defined in the Securities Act) for such Holder, and each
person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Securities Exchange Act of 1934 (the "Exchange
Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the 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 such Holder, officer or director, underwriter
or controlling person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity
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agreement contained in this Section 6(a) shall not apply to amounts paid in
settlement of
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any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon an untrue statement or omission made in
such registration statement, preliminary prospectus or final prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person;
provided, further, however, that if any losses, claims, damages or
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liabilities arise out of or are based upon any untrue statement of a
material fact, or omission to state a material fact required to be stated
therein or necessary to make the statements there not misleading in any
preliminary prospectus, and made in reliance upon and in conformity with
written information furnished by such Holder expressly for use therein,
which did not appear in the final prospectus, the Company shall not have
any such liability with respect thereto to such Holder, any person who
controls such Holder within the meaning of the Securities Act, or any
director of such Holder, if such Holder delivered a copy of the preliminary
prospectus to the person alleging such losses, claims, damages or
liabilities and failed to deliver a copy of the final prospectus, as
amended or supplemented if it has been amended or supplemented, to such
person at or prior to the written confirmation of the sale to such person,
provided that such Holder had an obligation to deliver a copy of the final
prospectus to such person; and
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its directors or officer or any person who controls
such Holder or underwriter, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officers, controlling person, or underwriter or controlling person, or
other such Holder or director, officer or controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue
statement or of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, if the untrue statement or omission in respect of which such
loss, claim, damage or liability is asserted was made in reliance upon and
in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will
reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, underwriter or controlling
person, or other Holder, officer, director, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
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contained in this Section 6(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action, if such
settlement is effected without the
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consent of the Holder (which consent shall not be unreasonably withheld);
provided, further that the maximum liability of any selling Holder under
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this Section 6(b) in regard to any registration statement shall in no event
exceed the amount of the net proceeds received by such selling Holder from
the sale of securities under such registration statement; provided,
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further, however, that if any losses, claims, damages or liabilities arise
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out of or are based upon an untrue statement, or omission to state a
material fact require to be stated therein or necessary to make the
statements therein not misleading in any preliminary prospectus which did
not appear in the final prospectus, such seller shall not have any such
liability with respect thereto to the Company, any person who controls the
Company within the meaning of the Securities Act, any officer of the
Company who signed the registration statement or any director of the
Company, if the Company delivered a copy of the preliminary prospectus to
the person alleging such losses, claims, damages or liabilities and failed
to deliver a copy of the final prospectus, as amended or supplemented if it
has been amended or supplemented, to such person at or prior to the written
confirmation of the sale to such person, provided that the Company had an
obligation to deliver a copy of the final prospectus to such person.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel mutually satisfactory to the parties. An indemnified party shall
have the right to retain its own counsel, however, the fees and expenses of
such counsel shall be at the expense of the indemnified party, unless (i)
the employment of such counsel has been specifically authorized in writing
by the indemnifying party, (ii) the indemnifying party has failed to assume
the defense and employ counsel, or (iii) the named parties to any such
action (including any impleaded parties) include both the indemnified party
and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
for all indemnified parties). The failure to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any indemnified party under this Agreement.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient (other than for reason of exceptions provided
in this Section 6) to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities or
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actions in respect thereof referred to therein, then each indemnifying
party shall in lieu of indemnifying such indemnified party contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or actions in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand,
and selling Holders, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including
the failure to give any required notice. The relative fault shall be
determined by reference to, among other things, whether the untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Company, on the one hand, or by such
selling Holders on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The parties hereto acknowledge and agree that it would not be
just and equitable if contribution pursuant to this subparagraph (d) were
determined by pro rata allocation (even if all of the selling Holders were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subparagraph (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities or actions in respect thereof referred to above in this
subparagraph (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), the amount the selling Holders shall
be required to contribute shall not exceed the amount, if any, by which the
total price at which the securities sold by each of them were offered to
the public exceeds the amount of any damages which they would have
otherwise been required to pay by reason of such untrue statement or
omission, or other violation of law. 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 fraudulent misrepresentation.
Section 7. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon and shall
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inure to the benefit of the original parties hereto and each person who
becomes a party hereto, and their respective successors and assigns.
(b) Notices. Except as otherwise provided herein, any notice, consent
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or request to be given in connection with any term or provision of this
Agreement shall be deemed to have been given sufficiently if sent by hand,
registered or certified mail, postage prepaid, facsimile transmission or
courier (next day delivery), to the Company or to Purchasers at their
addresses as designated in, or from time to time pursuant to, Article XII
of the Share Purchase Agreement.
(c) Integration. This Agreement contains the entire agreement between
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the parties with respect to the transactions contemplated hereby and no
party shall be bound by, nor shall any party be deemed to have made, any
covenants, representations,
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warranties, undertakings or agreements except those contained in such
entire Agreement. The section and paragraph headings contained in this
Agreement are for the reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same agreement.
(e) Amendment. Except as otherwise provided herein, the provisions of
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this Agreement may be amended or waived only upon the prior written consent
of the Company and the holders of a majority of all Registrable Securities;
provided, however, that no amendment or waiver which materially and
adversely effects the rights of a Purchaser or its affiliates hereunder
without also correspondingly materially and adversely effecting the rights
of the other holders of Registrable Securities may be made without the
consent of such Purchaser.
(f) Governing Law. This Agreement and the rights and remedies of the
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parties hereto shall be governed by and construed in accordance with the
laws of the State of Colorado.
(g) Specific Performance. Each of the parties hereto, in addition to
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being entitled to exercise all rights provided herein, in the Share
Purchase Agreement and granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement.
Each of the parties hereto agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(h) Rule 144. The Company covenants that it will file the reports
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required to be filed by it under the Exchange Act of 1934 and the rules and
regulations adopted by the SEC thereunder, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and
requirements.
(i) No Inconsistent Agreements. The Company shall not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(j) New Parties. During the term of this Agreement, the Company may,
-----------
with the consent of the Company's Board of Directors and CIVC, allow other
persons to
11
become parties to this Agreement by executing a joinder agreement, and the
Schedule of Holders attached hereto as Exhibit A shall be revised and
------------------- ---------
updated accordingly.
(k) Other Registration Rights. Except as provided in this Agreement,
-------------------------
the Company shall not grant to any Persons the right to request the Company
to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the holders of a majority of the
Registrable Securities.
(l) Adjustments Affecting Registrable Securities. The Company shall
--------------------------------------------
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such
registration.
12
IN WITNESS WHEREOF, this Agreement has been executed effective as of the
date first above written.
XXXXX LLC
By:___________________________
Name:_________________________
Title:________________________
XXXXXXXX FINANCIAL PARTNERS, L.P.
By:___________________________
Name:_________________________
Title:________________________
BCI GROWTH V, L.P.
By Glenpointe Associates V, LLC
General Partner
By:___________________________
Name:_________________________
Title:________________________
BCI INVESTORS, LLC
By:___________________________
Name:_________________________
Title:________________________
FACTUAL DATA CORP.
By:___________________________
Name:_________________________
Title:________________________
