FORM OF PLACEMENT AGENT'S
WARRANT REGISTRATION RIGHTS AGREEMENT
PLACEMENT AGENT'S WARRANT
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of the ____ day of __________, 1996, between
XXXXXX XXXXXXX & ASSOCIATES, INC., having an address at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (the "Holder") and NAVIDEC, INC., a
Colorado corporation having its executive office and principal place of
business at 00 Xxxxxxxxx Xxxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxxx, XX 00000
(the "Company").
WHEREAS, the Holder is providing its services as placement agent in
connection with the offering of an aggregate of up to $1,500,000 aggregate
principal amount of the Company's 10% unsecured subordinated convertible
notes, due December 30, 1997, upon the terms set forth in the Confidential
Private Placement Memorandum of the Company dated July , 1996 (the Bridge
Financing"); and
WHEREAS, the Company desires to grant to the Holder the
registration rights set forth herein with respect to the shares of Common
Stock subject to exercise pursuant to the Placement Agent's Warrants issued
in connection with the Bridge Financing (the "Registrable Securities");
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. DEMAND REGISTRATION RIGHTS. The Company intends to prepare and
file a Registration Statement under the Securities Act of 1933, as amended
(the "Act"), relating to the initial public offering of the Company's Common
Stock and Warrants to purchase Common Stock (the "Public Offering"), and to
use its best efforts to cause such Registration Statement to become
effective within twelve months following the initial closing date of the
Bridge Financing. The Holder may, at any time, but not before one (1) year
after the consummation of the Public Offering, request in writing that the
Company register the Registrable Securities (which request shall specify the
Registrable Securities intended to be sold or disposed of by the Holder and
shall state the intended method of disposition of such Registrable Securities
by the prospective seller), and the Company shall use its best efforts to
cause all of the Registrable Securities of the Holder to be registered under
the Act as soon as practicable following receipt of the written request of
the Holder for such registration, all to the extent requisite to permit the
sale or other disposition (in accordance with the intended methods thereof,
as aforesaid) by the prospective seller or sellers of the Registrable
Securities so registered. Any such Registration Statement may, at the option
of the Company, include other shares of Common Stock or other securities of
the Company to be sold by the Company or other security holders. The Holder
shall be limited to one (1) registration request. Notwithstanding anything
to the contrary provided herein, the Company may postpone for a reasonable
period (not exceeding 135 days) the filing of any Registration Statement
otherwise required to be filed hereunder if the Company determines, in its
sole
discretion, that such registration could interfere with any material
transaction involving the Company, or require premature disclosure thereof,
or if the Company would be required to undergo an interim audit in order to
effect such registration.
Notwithstanding anything to the contrary provided herein, the
Company shall not be required to file any Registration Statement with respect
to any Registrable Securities if, at the time such Registration Statement
would be effective, the Holder could sell in accordance with the provisions
of Rule 144 (or any successor or supplemental rule) under the Act the number
of Registrable Securities that the Holder proposes to register or, if, in the
opinion of counsel to the Company, such shares otherwise may be publicly sold
without registration under the Act.
2. "PIGGY-BACK" REGISTRATION RIGHTS. If the Company proposes for any
reason after the Public Offering to register any of its securities under the
Act (other than pursuant to a Registration Statement on Forms X-0, X-0 or
similar or successor forms), it shall each such time promptly give written
notice to the Holder of its intention so to do, and, upon the written
request, given within thirty (30) days after receipt of any such notice, of
the Holder to register its Registrable Securities (which request shall
specify the Registrable Securities intended to be sold or disposed of by the
Holder and shall state the intended method of disposition of such Registrable
Securities by the prospective seller), the Company shall use its best efforts
to cause all of the Registrable Securities of the Holder to be registered
under the Act promptly upon receipt of the written request of the Holder for
such registration, all to the extent requisite to permit the sale or other
disposition (in accordance with the intended methods thereof, as aforesaid)
by the prospective seller or sellers of the Registrable Securities so
registered.
UNDERWRITTEN OFFERING. In the event that the proposed registration
under Paragraphs 1 or 2 hereof is, in whole or in part, an underwritten
public offering of securities, any request to register the Registrable
Securities may request that they are to be included in the underwriting, and
if requested by the managing underwriter shall be included in the
underwriting, (a) on the same terms and conditions as like securities, if
any, otherwise being sold through underwriters under such registration, or
(b) on terms and conditions comparable to those normally applicable to
offerings of such securities in reasonably similar circumstances in the event
that no securities other than the Registrable Securities are being sold
through underwriters under such registration; PROVIDED, HOWEVER, that, as to
any registration pursuant to Paragraphs 1 or 2 hereof, (i) if the managing
underwriter determines and advises in writing that the inclusion of all the
Registrable Securities proposed to be included in the underwritten public
offering and other issued and outstanding securities proposed to be included
therein by persons other than the Holder (the "Other Shares") would interfere
with the successful marketing of such securities, then the number of
Registrable Securities and Other Shares excluded from such registration shall
be allocated pro rata among the Holder and the holders of the Other Shares
(based on the number of securities requested by the Holder and the holders of
the Other Shares to be registered in such offering), and (ii) in each case
those securities that are excluded from the underwritten public offering
pursuant to this Paragraph 3
shall be withheld from the market by the Holder for a period, not to exceed
90 days, that the managing underwriter reasonably determines as necessary in
order to effect the underwritten public offering.
4. ADDITIONAL TERMS. The following provisions shall be applicable to
any Registration Statement filed pursuant to Paragraphs 1 or 2 of this
Agreement:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective as promptly as practicable and, if any stop
order shall be issued by the SEC in connection therewith, to use its
reasonable efforts to obtain the removal of such order. Following the
effective date of the Registration Statement, the Company shall, upon the
request of the Holder, forthwith supply such reasonable number of copies of
the Registration Statement, preliminary prospectus and prospectus meeting the
requirements of the Act, and other documents necessary or incidental to the
Public Offering, as shall be reasonably requested by the Holder to permit the
Holder to make a public distribution of its Registrable Securities. The
Company will use its reasonable efforts to qualify the Registrable Securities
for sale in such states as the Holder shall reasonably request, provided that
no such qualification will be required in any jurisdiction where, solely as a
result thereof, the Company would be subject to service of general process or
to taxation or qualification as a foreign corporation doing business in such
jurisdiction. The obligations of the Company hereunder with respect to the
Holder's Registrable Securities are expressly conditioned on the Holder's
furnishing to the Company such appropriate information concerning the Holder,
the Holder's Registrable Securities and the terms of the Holder's offering of
such Registrable Securities as the Company may reasonably request. The
Company shall maintain the Registration Statement in effect for so long as
the Registrable Securities remain issued, provided, however, that the Company
shall not be required to keep such Registration Statement effective, and it
may deregister any unsold Registrable Securities, if, in the opinion of
counsel to the Company, such shares may then be sold pursuant to the
provisions of Rule 144 under the Act.
(b) The Company shall bear the entire cost and expense of any
registration of the Registrable Securities; provided, however, that the
Holder shall be solely responsible for the fees of any counsel retained by
him in connection with such registration and any transfer taxes or
underwriting discounts or commissions applicable to the Registrable
Securities sold by it pursuant thereto.
(c) The Company shall indemnify and hold harmless the Holder and
each underwriter, within the meaning of the Act, who may purchase from or
sell for the Holder, any Registrable Securities, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement of a
material fact contained in the Registration Statement, any post-effective
amendment to such Registration Statement, or any prospectus included therein
required to be filed or furnished by reason of this Agreement, or caused by
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,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or alleged untrue statement or omission or alleged
omission based upon information furnished or required to be furnished in
writing to the Company by the Holder or underwriter expressly for use
therein; which indemnification shall include each person, if any, who
controls any such underwriter within the meaning of the Act and each officer,
director, employee and agent of such underwriter. The Holder and any such
underwriter and other person, shall be obligated to indemnify the Company,
its directors, each officer signing the Registration Statement and each
person, if any, who controls the Company within the meaning of the Act, from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any registration statement or any prospectus
required to be filed or furnished by reason of this Agreement or caused by
any omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
alleged untrue statement or omission based upon information furnished in
writing to the Company by the Holder or underwriter or other person expressly
for use therein.
(d) If for any reason the indemnification provided for in the
preceding subparagraph is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and
the indemnifying party, as well as any other relevant equitable
considerations.
(e) Neither the filing of a Registration Statement by the Company
pursuant to this Agreement nor the making of any request for prospectuses by
the Holder shall impose upon the Holder any obligation to sell his
Registrable Securities.
(f) The Holder, upon receipt of notice from the Company that an
event has occurred which requires a post-effective amendment to the
Registration Statement or a supplement to the prospectus included therein,
shall promptly discontinue the sale of his Registrable Securities until the
Holder receives a copy of a supplemented or amended prospectus from the
Company, which the Company shall provide as soon as practicable after such
notice.
5. GOVERNING LAW.
(a) The Registrable Securities are being delivered in Colorado.
This Agreement shall be deemed to have been made and delivered in the State
of Colorado
and shall be governed as to validity, interpretation, construction, effect
and in all other respects by the internal laws of the State of Colorado.
(b) The Company and the Holder each (a) agrees that any legal suit,
action or proceeding arising out of or relating to this Agreement, or any
other agreement entered into between the Company and the Holder pursuant to
the Bridge Financing or the Public Offering shall be instituted exclusively
in Colorado District Court, Arapahoe County and U.S. District Court for the
District of Colorado, each and any of which shall apply Colorado law, (b)
waives any objection which the Company or such Holder may have now or
hereafter to the venue of any such suit, action or proceeding, and (c)
irrevocably consents to the jurisdiction of the Colorado District Court,
Arapahoe County, and U.S. District Court for the District of Colorado in any
such suit, action or proceeding. The Company and the Holder each further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the Colorado District Court,
Arapahoe County and U.S. District Court for the District of Colorado, and
agrees that service of process upon the Company or the Holder mailed by
certified mail to the Company's or, as the case may be, the Holder's address
shall be deemed in every respect effective service of process upon the
Company or the Holder, as the case may be, in any suit, action or proceeding.
6. AMENDMENT. This Agreement may only be amended by a written
instrument executed by the Company and the Holder.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
9. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered
by hand, by Federal Express or other national overnight courier service, or
mailed by registered or certified mail, postage prepaid, return receipt
requested, and, if mailed, shall be deemed to have been received on the third
day after a notice has been sent as follows:
If to the Holder, to its address set forth on the signature page of
this Agreement.
If to the Company, to the address set forth on the first page of
this Agreement.
10. BINDING EFFECT; BENEFITS. The Holder may not assign its rights
hereunder. This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns, including, without limitation, the
permitted transferees of the Registrable Securities. Nothing herein
contained, express or implied, is intended to confer upon any person other
than the parties hereto and their respective heirs, legal representatives,
successors and such permitted assigns, any rights or remedies under or by
reason of this Agreement.
11. HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
12. SEVERABILITY. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto as of the date first above written.
NAVIDEC, INC.
By:
--------------------------------
Xxxxx Xxxxxx, President
HOLDER:
XXXXXX XXXXXXX & ASSOCIATES, INC.
By:
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