REGISTRATION RIGHTS AGREEMENT
Exhibit
5.2(h)
This
Registration Rights Agreement (“Agreement”)
is
entered into as of May ___, 2007, between Migo Software, Inc., a Delaware
corporation with offices at 000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxx, Xxxxxxxxxx, 00000 (the “Company”),
and
the persons whose names and addresses are set forth on the signature page hereof
(the “Holders”).
WITNESSETH:
WHEREAS,
the
Company has issued shares of the common stock, $.0001 per share of the Company
(the “Common
Stock”)
and
shares of Series B Preferred Stock, $.0001 per value per share of the Company
(the “Series
B Preferred”)
to the
Holders in connection with the merger (the “Merger”)
of a
wholly-owned subsidiary of the Company and Macroport, Inc. (“MP”)
as a
result of which MP has become a wholly-owned subsidiary of the Company pursuant
to the terms of an Agreement and Plan of Merger of even date herewith (the
“Merger
Agreement”);
WHEREAS,
the
Company has agreed to provide to the Holders certain registration rights as
set
forth herein;
NOW,
THEREFORE,
in
consideration of the mutual promises, representations, warranties, covenants
and
conditions set forth in the Merger Agreement and this Agreement, the Company
and
each Holder agrees as follows:
1. Certain
Definitions.
Unless
defined herein, capitalized terms used herein and not otherwise defined shall
have the meaning ascribed thereto in the Merger Agreement. As used in this
Agreement, the following terms shall have the following respective
meanings:
“Closing
Date”
shall
have the meaning ascribed to it in the Merger Agreement.
“Commission”
or
“SEC”
shall
mean the Securities and Exchange Commission or any other federal agency at
the
time administering the Securities Act.
“Holder”
and
“Holders”
shall
include the persons set forth on the signature page hereof and any permitted
transferee or transferees of Registrable Securities (as defined below) and
the
Securities which have not been sold to the public to whom the registration
rights conferred by this Agreement have been transferred in compliance with
this
Agreement.
The
terms
“register,”
“registered”
and
“registration”
shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness
of
such registration statement.
“Registrable
Securities”
shall
mean: (i) the Common Stock or other securities issued or issuable to each Holder
or its permitted transferee or designee under the Merger Agreement (including
securities issuable in the future in accordance with Section 2.4 of the Merger
Agreement), (ii) any Common Stock issuable to any Holder or its permitted
transferee or designee upon conversion of any Series B Preferred issued under
the Merger Agreement; (iii) securities issued or issuable upon any stock split,
stock dividend, merger, reverse merger, recapitalization or similar event with
respect to the foregoing; and (iv) any other security issued as a dividend
or
other distribution with respect to, in exchange for or in replacement of the
securities referred to in the preceding clauses; provided that all such shares
shall cease to be Registrable Securities at such time as they have been sold
under a Registration Statement or pursuant to Rule 144 under the Securities
Act
or otherwise or at such time as they are eligible to be sold pursuant to Rule
144(k).
“Registration
Expenses”
shall
mean all expenses, exclusive of underwriting discounts and commissions, to
be
incurred in connection with each Holder’s registration rights under this
Agreement not included in Selling Expenses, 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) and the reasonable out-of-pocket fees and disbursements
of
one counsel for the selling Holders selected by them shall be borne by the
Company.
“Registration
Statement”
shall
have the meaning set forth in Section 2(a) herein.
“Regulation
D”
shall
mean Regulation D as promulgated pursuant to the Securities Act, and as
subsequently amended.
“Securities
Act”
or
“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.
2. Registration
Requirements.
Within
the two (2) month period after the Closing Date and using continued best efforts
thereafter, the Company shall use its best efforts to effect as soon as
practicable the registration of the Registrable Securities (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act) as would permit or facilitate the sale or distribution of all
the Registrable Securities in the manner (including manner of sale) and in
all
states reasonably requested by the Holder. Such best efforts by the Company
shall include, without limitation, the following:
The
Company shall, as expeditiously as possible:
(i) Prepare
and file a registration statement with the Commission pursuant to Rule 415
under
the Securities Act on Form SB-2 under the Securities Act (or in the event that
the Company is ineligible to use such form, such other form as the Company
is
eligible to use under the Securities Act provided that such other form shall
be
converted into an SB-2 as soon as Form SB-2 becomes available to the Company)
covering resales by the Holders as selling stockholders (not underwriters)
of
the Registrable Securities (“Registration
Statement”),
The
Company shall use its best efforts to cause such Registration Statement and
other filings to be declared effective as soon as practicable. Without limiting
the foregoing, the Company will promptly respond to all SEC comments, inquiries
and requests, and shall request acceleration of effectiveness at the earliest
possible date.
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(ii) 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 necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement and notify the Holders of the filing and effectiveness of such
Registration Statement and any amendments or supplements.
(iii) As
soon
as practicable after the effectiveness of the Registration Statement or the
filing date of any amendments or supplements, as the case may be, furnish,
by
email to the respective email addresses set forth on the signature pages hereto,
to each Holder that has Registrable Securities included in the Registration
Statement such numbers of copies of a current prospectus conforming with the
requirements of the Securities Act, copies of the Registration Statement, any
amendment or supplement thereto and any documents incorporated by reference
therein and such other documents as such Holder may reasonably request in order
to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register
and qualify the securities covered by such Registration Statement under the
securities or “Blue Sky” laws of all domestic jurisdictions; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such states or jurisdictions.
(v) Notify
promptly each Holder that has Registrable Securities included in the
Registration Statement of the happening of any event (but not the substance
or
details of any such event) of which the Company has knowledge as a result of
which the prospectus (including any supplements thereto or thereof) included
in
such Registration Statement, as then in effect, includes an untrue statement
of
material fact or omits 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 (each an “Event”),
and
use its best efforts to promptly update and/or correct such prospectus. Each
Holder will hold in confidence and will not make any disclosure of any such
Event and any related information disclosed by the Company except to Holder’s
financial and legal advisors.
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(vi) Notify
each Holder of the issuance by the Commission or any state securities commission
or agency of any stop order suspending the effectiveness of the Registration
Statement or the threat or initiation of any proceedings for that purpose.
The
Company shall use its best efforts to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible time.
(vii) List
the
Registrable Securities covered by such Registration Statement with all
securities exchange(s) and/or markets on which the Common Stock is then listed
and prepare and file any required filings with the Over The Counter Bulletin
Board (the “OTCBB”),
if
any, or any other exchange or market where the Common Stock is
traded.
(viii) Take
all
steps reasonably necessary to enable Holders to avail themselves of the
prospectus delivery mechanism set forth in Rule 153 (or successor thereto)
under
the Act.
(ix) Permit
a
Holder, if such Holder reasonably believes it 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.
(x) In
the
event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any common stock included
in such registration statement for sale in any jurisdiction, the Company shall
use its reasonable efforts promptly to obtain the withdrawal of such
order.
(xi) Furnish
to the underwriters, if such securities are being sold through underwriters,
at
the request of such underwriters, on the date that such Registrable Securities
are delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement, (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, and (ii) a comfort 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 solely
to the underwriters, which letter specifies the parties entitled to rely
thereon.
(b) Notwithstanding
the obligations under Section 2(a)(v) or any provision of this Agreement, if
(i)
in the good faith judgment of the Company, following consultation with legal
counsel, it would be detrimental to the Company and its stockholders for resales
of Registrable Securities to be made pursuant to the Registration Statement
due
to the existence of a material development or potential material development
involving the Company that the Company would be obligated to disclose in the
Registration Statement, which disclosure would be premature or otherwise
inadvisable at such time or would have a material adverse effect upon the
Company and its stockholders, or (ii) in the good faith judgment of the Company,
it would adversely affect or require premature disclosure of the filing of
a
Company-initiated registration of any class of its equity securities, then
the
Company will have the right to suspend the use of the Registration Statement
for
two periods of not more than 30 calendar days each in any 12 month period,
but
only if the Company reasonably concludes, after consultation with outside legal
counsel, that the failure to suspend the use of the Registration Statement
as
such would create a material liability or violation under applicable securities
laws or regulations.
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(c) If
at any
time subsequent to the date such Registration Statement is declared effective,
the number of shares of Common Stock registered for resale pursuant to the
Registration Agreement is not equal to at least 100% of the Registrable
Securities, the Company shall amend the Registration Statement to add such
additional securities. In the event that the Company is unable under the
securities laws to add such additional securities to the then effective
Registration Statement, the Company shall promptly file, in accordance with
the
procedures set forth herein, an additional Registration Statement with respect
to such newly Registrable Securities. The Company shall use its best efforts
to
cause any such additional Registration Statement, when filed, to become
effective as soon as practicable after that date as of which the need to file
the Registration Statement arose.
(d) If
at any
time during the term of this Agreement, the registration statement described
in
Section 2(a) is not effective with respect to some or all of the Registrable
Securities, each Holder shall have the following “piggyback” registration
rights, which rights shall be pari passu to “piggyback” registration rights or
similar rights provided under any other registration rights agreements binding
on the Company. If the Company at any time following the Closing Date proposes
for any reason to register Common Stock under the Securities Act (other than
registrations relating to employee benefit plans, business combinations or
other
registrations on Form S-4 or Form S-8 promulgated under the Securities Act
or
any successor forms thereto), it shall promptly give written notice to each
Holder of its intention to so register such equity securities and, upon the
written request, given within 20 calendar days after delivery of such notice
by
the Company, of such Holder to include in such registration Registrable
Securities held by such Holder (which request shall specify the number of
Registrable Shares proposed to be included in such registration by such Holder
and shall state the intended method of disposition of such Registrable
Securities by such Holder), the Company shall use its best efforts to cause
all
such Registrable Securities to be included in such registration on the same
terms and conditions as the securities otherwise being sold in such
registration; provided, however, that the Company shall have the right to delay
such a registration under customary circumstances for a period not in excess
of
90 calendar days in any twelve month period and if the managing underwriter
advises the Company in writing that the inclusion of all Registrable Securities
proposed to be included in such registration would interfere materially with
the
successful marketing (including pricing) of primary shares (the “Primary
Shares”)
proposed to be registered by the Company, then the number of Primary Shares
and
Registrable Securities proposed to be included in such registration shall be
included in the following order:
(i) first,
the Primary Shares; and
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(ii) second,
the Registrable Securities requested to be included in such registration
pursuant to this Section 2(d) on a pari passu basis with the securities of
other
holders with “piggyback” registration rights;
provided,
that in
the case of any such underwritten offering of Common Stock by the Company that
is in satisfaction of a demand registration pursuant to Section 2(e), the
order for inclusion of Primary Shares and Registrable Securities shall be as
set
forth in that section.
(e) If
at any
time during the period beginning 180 calendar days after the Closing Date and
ending two years after the Closing Date, the registration statement described
in
Section 2(a) is not effective with respect to some or all of the Registrable
Securities, Holders who collectively hold more than $500,000 in value of the
Registrable Securities shall have the following demand registration rights.
If
the Company shall be requested in writing by an eligible Holder, or eligible
Holders, to effect a registration on Form S-1, or on Form SB-2 if the
Company is so eligible, under the Securities Act of Registrable Securities,
then
the Company shall promptly use its best efforts to effect such registration
under the Securities Act of such Registrable Securities which the Company has
been so requested to register in the manner described in Section 2(a); provided,
however, that the Company shall not be obligated to effect any registration
under this Section 2(e) except in accordance with the following
provisions:
(i) The
Company shall not be obligated to file and cause to become effective (x) more
than two
registration statements on Form S-1 or Form SB-2 with respect to
Registrable Securities initiated by the Holders pursuant to this
Section 2(e); (y) any registration statement covering less than $500,000 in
value of Registrable Securities; or (z) any registration statement during any
period in which any other registration statement pursuant to which Common Stock
are to be or were sold has been filed and not withdrawn or has been declared
effective within the prior 60 calendar days;
(ii) The
Company may delay the filing or effectiveness of any registration statement
for
a period of up to 60 calendar days after the date of a request for registration
pursuant to this Section 2(e) if the Company determines in good faith that
(A)
it is in possession of material, non-public information concerning an
acquisition, merger, recapitalization, consolidation, reorganization or other
material transaction by or of the Company or concerning pending or threatened
litigation and (B) disclosure of such information would jeopardize any such
transaction or litigation or otherwise materially harm the Company; provided,
however,
that
the Company may not exercise such deferral right more than twice in any twelve
month-period.
(f) At
such
time as the Company shall have qualified for the use of Form S-3 promulgated
under the Securities Act or any successor form thereto, the Holders shall have
the right to request in writing registrations on Form S-3 or such successor
form
of Registrable Shares held by the Holders in the manner described in Section
2(a), which request or requests shall (i) specify the number of Registrable
Shares held by the requesting Holders intended to be sold or disposed of, (ii)
state the intended method of disposition of such Registrable Shares held by
the
Holders and (iii) relate to Registrable Shares having an anticipated aggregate
offering price of at least $500,000. A requested registration on Form S-3 or
any
such successor form in compliance with Section 4 shall not count as a
registration statement initiated pursuant to Section 2(e) but shall otherwise
be
treated as a registration statement initiated pursuant to, and shall, except
as
otherwise expressly provided in Section 4, be subject to Section 2. In
no event will any Holder be entitled to demand any registration on Form S-3
if
the registration would require filing under Blue Sky or similar state securities
laws in any jurisdiction in which the Company would be required to qualify
to do
business or execute a general consent to service of process to effect such
registration and filing.
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3. Reports
Under Securities
Exchange Act of 1934.
With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may
at
any time permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144 so long as the Company remains subject to the periodic reporting
requirements under Sections 13 or 15(d) of the Exchange Act;
(b) 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
(c) furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) a written statement by the Company that it has complied with
the reporting requirements of SEC Rule 144, the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing any Holder of
any
rule or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
4. Expenses
of Registration.
All
Registration Expenses in connection with any registration, qualification or
compliance with registration pursuant to this Agreement shall be borne by the
Company, and all Selling Expenses of a Holder shall be borne by such
Holder.
5. Registration
on Form SB-2.
The
Company shall use its best efforts to continue to meet the “registrant
eligibility” requirements for a secondary offering set forth in the general
instructions to Form SB-2 or any comparable or successor form or forms, or
in
the event that the Company is ineligible to use such form, such form as the
Company is eligible to use under the Securities Act, provided that if such
other
form is used, the Company shall convert such other form to a Form SB-2 as soon
as the Company becomes so eligible.
6. Registration
Period.
In the
case of the registration effected by the Company pursuant to this Agreement,
the
Company shall keep such registration effective and current until the earlier
of
(a) the date on which all the Holders have completed the sales or distribution
described in the Registration Statement relating thereto or, if earlier until
such Registrable Securities may be sold by the Holders under Rule 144(k)
(provided that the Company’s transfer agent has accepted an instruction from the
Company to such effect which instruction shall not be unreasonably withheld
or
delayed or conditioned by the Company) or (b) second (2nd)
anniversary of the Closing Date.
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7. Indemnification.
(a) Company
Indemnity.
The
Company will indemnify each Holder, each of its officers, directors, agents
and
partners, and each person controlling each of the foregoing, within the meaning
of Section 15 of the Securities Act and the rules and regulations thereunder
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls, within the meaning of Section 15 of the Securities Act
and
the rules and regulations thereunder, 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 final prospectus (as amended or supplemented if the
Company files any amendment or supplement thereto with the SEC), Registration
Statement filed pursuant to this Agreement or any post-effective amendment
thereof 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 in light of the circumstances under which they were
made,
or any violation by the Company of the Securities Act or any state securities
law or in either case, 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
each
Holder, each of its officers, directors, agents and partners, and each person
controlling each of the foregoing, for any reasonable legal fees of a single
counsel and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to a Holder to
the
extent that any such claim, loss, damage, liability or expense arises out of
or
is based on (i) any untrue statement or omission based upon written information
furnished to the Company by such Holder or underwriter (if any) therefor and
stated to be specifically for use therein, (ii) any failure by any Holder to
comply with prospectus delivery requirements or the Securities Act or Exchange
Act or any other law or legal requirement applicable to them or any covenant
or
agreement contained in the Merger Agreement or this Agreement or (iii) an offer
of sale of Common Stock occurring during a period in which sales under the
Registration Statement are suspended as permitted by this Agreement. The
indemnity agreement contained in this Section 7(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if
such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld).
(b) Holder
Indemnity.
Each
Holder will, severally but not jointly, 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,
officers, agents and partners, and any other stockholder selling securities
pursuant to the Registration Statement and any of its directors, officers,
agents, partners, and any person who controls such stockholder within the
meaning of the Securities Act or Exchange Act 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 within the meaning of Section
15 of
the Securities Act and the rules and regulations thereunder, each other Holder
(if any), and each of their officers, directors and partners, and each person
controlling such other Holder(s) 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 made by Holder
and contained in any such final prospectus (as amended or supplemented if the
Company files any amendment or supplement thereto with the SEC), Registration
Statement filed pursuant to this Agreement or any post-effective amendment
thereof or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading in light of the circumstances under which they were
made
and will reimburse the Company and such other Holder(s) and their directors,
officers and partners, underwriters or control persons for any reasonable legal
fees or any other expenses reasonably incurred in connection with investigating
and 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 final
prospectus (as amended or supplemented if the Company files any amendment or
supplement thereto with the SEC), Registration Statement filed pursuant to
this
Agreement or any post-effective amendment thereof in reliance upon and in
conformity with written information furnished to the Company by such Holder
and
stated to be specifically for use therein, and provided that the maximum amount
for which such Holder shall be liable under this indemnity shall not exceed
the
net proceeds received by such Holder from the sale of the Registrable Securities
pursuant to the registration statement in question. The indemnity agreement
contained in this Section 7(b) shall not apply to amounts paid in settlement
of
any such claims, losses, damages or liabilities if such settlement is effected
without the consent of such Holder (which consent shall not be unreasonably
withheld).
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(c) Procedure.
Each
party entitled to indemnification under this Section 7 (the “Indemnified
Party”)
shall
give notice to the party required to provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim in 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 be unreasonably withheld), and
the
Indemnified Party may participate in such defense at its own expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 7 except to the extent that the Indemnifying Party is
materially and adversely affected by such failure to provide notice. 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 non-privileged 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.
8. Contribution.
If the
indemnification provided for in Section 7 herein is unavailable to the
Indemnified Parties in respect of any losses, claims, damages or liabilities
referred to herein (other than by reason of the exceptions provided therein),
then each such 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 losses, claims, damages or liabilities as between the
Company on the one hand and any Holder(s) on the other, in such proportion
as is
appropriate to reflect the relative fault of the Company and of such Holder(s)
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of any
Holder(s) 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
or
alleged omission to state a material fact relates to information supplied by
the
Company or by such Holder(s).
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In
no
event shall the obligation of any Indemnifying Party to contribute under this
Section 8 exceed the amount that such Indemnifying Party would have been
obligated to pay by way of indemnification if the indemnification provided
for
under Section 7(a) or 7(b) hereof had been available under the
circumstances.
The
Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the 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 in the immediately preceding paragraphs. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraphs
shall be deemed to include, subject to the limitations set forth above, 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 Section, no Holder shall be required
to
contribute any amount in excess of the amount by which in the case of any
Holder, the net proceeds received by such Holder from the sale of Registrable
Securities pursuant to the registration statement in question. 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.
9. Survival.
The
indemnity and contribution agreements contained in Sections 7 and 8 shall remain
operative and in full force and effect regardless of (i) any termination of
this
Agreement or the Merger Agreement, and (ii) the consummation of the sale or
successive resales of the Registrable Securities.
10. Information
by Holders.
As a
condition to the obligations of the Company to complete any registration
pursuant to this Agreement with respect to the Registrable Securities of each
Holder, such Holder will furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended methods of
disposition of the Registrable Securities held by it as is reasonably required
by the Company to effect the registration of the Registrable Securities. At
least five business days prior to the first anticipated filing date of a
Registration Statement for any registration under this Agreement, the Company
will notify each Holder of the information the Company requires from that Holder
whether or not such Holder has elected to have any of its Registrable Securities
included in the Registration Statement.
11. Further
Assurances.
Each
Holder will cooperate with the Company, as reasonably requested by the Company,
in connection with the preparation and filing of any Registration Statement
hereunder, unless such Holder has notified the Company in writing of such
Holder’s irrevocable election to exclude all of such Holder’s Registrable
Securities from such Registration Statement.
10
12. Suspension
of Sales.
Upon
receipt of any notice from the Company under Section 2(a)(v) or 2(b), each
Holder will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until (i) it receives copies of a supplemented or amended prospectus
contemplated by Sections 2(a)(v) or (ii) the Company advises the Holder that
a
suspension of sales under Section 2(b) has terminated. If so directed by the
Company, each Holder will deliver to the Company (at the expense of the Company)
or destroy all copies in the Holder’s possession (other than a limited number of
file copies) of the prospectus covering such Registrable Securities that is
current at the time of receipt of such notice.
13. Replacement
Certificates.
The
certificate(s)
representing the Registrable Securities held by a Holder may be exchanged by
such Holder at any time and from time to time for certificates with different
denominations representing an equal aggregate number of shares of Common Stock
or Series B Preferred (as applicable), as reasonably requested by such Holder
upon surrendering the same. No service charge will be made for such registration
or transfer or exchange. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of the Note
or
certificates for Common Stock or Series B Preferred (as applicable), and, in
the
case of loss, theft or destruction, of indemnity reasonably satisfactory to
it,
or upon surrender and cancellation of such certificate if mutilated, the Company
will make and deliver a new certificate of like tenor and dated as of such
cancellation at no charge to the holder.
14. Transfer
or Assignment.
Except
as otherwise provided herein, this Agreement shall be binding upon and inure
to
the benefit of the parties and their successors and permitted assigns. The
rights granted to each Holder by the Company under this Agreement to cause
the
Company to register Registrable Securities, and all other rights granted to
any
Holder by the Company hereunder, may be transferred or assigned (in whole or
in
part) by such Holder to (i) any partner or retired partner of such Holder,
if
such Holder is a partnership, (ii) any family member of such Holder or trust
for
the benefit thereof or of such Holder; or (iii) any transferee from such Holder
of at least 100,000 shares of Registrable Securities; provided
in each
case that (i) the Company is given written notice by the Holder at the time
of
or within a reasonable time after such transfer or assignment, stating the
name
and address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned;
and
provided further that the transferee or assignee of such rights agrees in
writing to be bound by the registration provisions of this Agreement, (ii)
such
transfer or assignment is not made under the Registration Statement or Rule
144,
and (iii) the transferee has provided to the Company an investor questionnaire
(or equivalent document) evidencing that the transferee is a “qualified
institutional buyer” or an “accredited investor” defined in Rule
501(a)(1),(2),(3), or (7) of Regulation D.
15. Miscellaneous.
(a) Remedies.
The
Company and each Holder acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement
and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity.
11
(b) Notices.
Any
notice or other communication required or permitted to be given hereunder shall
be in writing by facsimile, mail or personal delivery and shall be effective
upon actual receipt of such notice. The addresses for such communications shall
be:
to
the
Company:
000
Xxxx
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, Xxxxxxxxxx, 00000
Attn:
Xxxxxxx Xxxxxxx, CFO
Facsimile:
[____________]
with
a
copy to:
Xxxxx
Xxxx, P.C.
0000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxx Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
If
to the
Holder, to the respective addresses set forth on Schedule I hereto,
with
a
copy to:
___________________________
___________________________
Attention:
______________________
Facsimile:
______________________
Any
party
hereto may from time to time change its address for notices by giving at least
five calendar days’ written notice of such changed address to the other parties
hereto.
(c) Waivers.
No
waiver by any party of any default with respect to any provision, condition
or
requirement of this Agreement shall be deemed to be a continuing waiver in
the
future or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder in
any
manner impair the exercise of any such right accruing to it thereafter. The
representations and warranties and the agreements and covenants of the Company
and each Holder contained herein shall survive the Closing.
(d) Execution
in Counterparts.
This
Agreement may be executed in two or more counterparts and by facsimile, all
of
which shall be considered one and the same agreement, it being understood that
all parties need not sign the same counterpart.
(e) Signatures.
Facsimile signatures shall be valid and binding on each party submitting the
same.
12
(f) Entire
Agreement; Amendment.
This
Agreement, together with the Merger Agreement and the agreements and documents
contemplated hereby and thereby, contains the entire understanding and agreement
of the parties. This Agreement may not be amended, modified or terminated except
by a written agreement signed by the Company and the Holder hereunder. Any
such
amendment, modification or termination shall be binding upon the Company and
the
Holder.
(g) Governing
Law.
This
Agreement and the validity and performance of the terms hereof shall be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts executed and to be performed entirely within such
state.
(h) Jury
Trial.
EACH
PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY.
(i) Titles.
The
titles used in this Agreement are used for convenience only and are not to
be
considered in construing or interpreting this Agreement.
(j) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party.
(k) Authority
.
Each of
the parties hereto represents to the other that (a) it has the corporate
power and authority to execute, deliver and perform this Agreement, (b) the
execution, delivery and performance of this Agreement by it has been duly
authorized by all necessary corporate action and no such further action is
required, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally and general equity
principles.
IN
WITNESS WHEREOF,
the
undersigned have caused this Agreement to be executed as of the date first
written above.
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COMPANY:
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13
COUNTERPART
SIGNATURE PAGE
DATED
MAY
___, 2007,
AMONG
MIGO SOFTWARE, INC. AND
THE
“HOLDERS” IDENTIFIED THEREIN
The
undersigned hereby executes and delivers the Registration Rights Agreement
to
which this Signature Page is attached, which, together with all counterparts
of
the Registration Rights Agreement and Signature Pages of the Company and any
other “Holders” under the Registration Rights Agreement, shall constitute one
and the same document in accordance with the terms of the Registration Rights
Agreement.
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HOLDER:
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By:
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Name:
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Title:
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Address:
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Telephone:
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Telecopier:
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Email
Address:
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14
