{"id":43865,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/registration-rights-agreement-cybermedia-inc-and-walk-softly.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"registration-rights-agreement-cybermedia-inc-and-walk-softly","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/registration-rights-agreement-cybermedia-inc-and-walk-softly.html","title":{"rendered":"Registration Rights Agreement &#8211; CyberMedia Inc. and Walk Softly Inc."},"content":{"rendered":"<pre>\n                          REGISTRATION RIGHTS AGREEMENT\n\n\n\n        THIS REGISTRATION RIGHTS AGREEMENT is made as of April 1, 1997 by and \namong CyberMedia Inc., a Delaware corporation (the \"Acquiror\") and the \nShareholders (as defined below).\n\n                                    RECITALS\n\n        WHEREAS, the Acquiror, Walk Softly, Inc., a California corporation, and\nthe shareholders listed on Exhibit A (the \"shareholders\" are parties to that\ncertain Agreement and Plan of Reorganization (the \"Acquisition Agreement\") dated\nas of April __, 1997; and\n\n        WHEREAS, the issuance of Acquiror's Common Stock to the Shareholders in\nthe Acquisition Agreement is conditioned upon the registration rights being\nextended to the Shareholders,\n\n        NOW THEREFORE, in consideration of the foregoing, the parties agree as\nfollows:\n\n        1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms\nshall have the following respective meanings:\n\n           \"Closing Date\" shall mean the date of execution of this Agreement and\nthe Acquisition Agreement by the Acquiror and the Shareholders. \n\n           \"Commission\" shall mean the Securities and Exchange Commission of the\nUnited States or any other U.S. federal agency at the time administering the\nSecurities Act.\n\n           \"Common Stock\" shall mean shares of the Acquiror's Common Stock. \n\n           \"Holder\" shall mean each of the Shareholders holding Registrable\nSecurities.\n\n           \"Other Holders\" shall mean holders of Company securities having\nregistration rights pursuant to the Amended and Restated Registration Rights\nAgreement dated as of July 3, 1996, between Acquiror and the parties thereto.\n\n           \"Registrable Securities\" means (i) the Common Stock issued pursuant\nto the Acquisition Agreement and (ii) any shares of Common Stock issued or\nissuable in respect of such Common Stock upon any stock split, stock dividend,\nrecapitalization, or similar event; provided that none of such shares of Common\nStock are, at the time of Holders' exercise of any rights hereunder, subject to\na repurchase option in favor of Acquiror. Shares of Common Stock shall only be\ntreated as Registrable Securities if they have not been (A) sold to or through a\nbroker or dealer or underwriter in a public distribution or a public securities\ntransaction or (B) sold or, in the opinion of counsel to the Company, are\navailable for sale in a single transaction exempt from the registration and\nprospectus delivery requirements of the Securities Act so that all transfer\nrestrictions and restrictive legends with respect thereto are removed upon the\nconsummation of such sale.\n\n\n\n\n                                      -1-\n\n           The terms \"register, \"registered\" and \"registration\" refer to a\nregistration effected by preparing and filing a registration statement in\ncompliance with the Securities Act, and the declaration or ordering of the\neffectiveness of such registration statement.\n\n           \"Registration Expenses\" shall mean all expenses, except as otherwise\nstated below, incurred by the Acquiror in complying with Sections 2 and 3\nhereof, including, without limitation, all registration, qualification and\nfiling fees, printing expenses, escrow fees, fees and disbursements of counsel\nfor the Acquiror (but not fees and disbursements of special counsel for Holders,\nif any, that is not also counsel for the Acquiror), Blue Sky fees and expenses\nand the expense of any special audits incident to or required by any such\nregistration (but excluding the compensation of regular employees of the\nAcquiror which shall be paid in any event by the Acquiror).\n\n           \"Securities Act\" shall mean the Securities Act of 1933, as amended,\nand the rules and regulations of the Commission thereunder, or any similar\nUnited States federal statute.\n\n           \"Selling Expenses\" shall mean all underwriting discounts, selling\ncommissions and stock transfer taxes applicable to the securities registered by\nHolders.\n\n        2. COMPANY REGISTRATION.\n\n           (a) Notice of Registration. If at any time or from time to time the\nCompany shall determine to register any of its securities, either for its own\naccount or the account of a security holder or holders, other than (i) a\nregistration relating solely to employee benefit plans or (ii) a registration\nrelating solely to a Commission Rule 145 transaction, the Company will:\n\n               (i) promptly give to each Holder written notice thereof, and\n\n               (ii) include in such registration (and any related qualification\nunder Blue Sky laws or other compliance), and in any underwriting-involved\ntherein, all the Registrable Securities specified in a written request or\nrequests, made within twenty (20) days after receipt of such written notice from\nthe Acquiror, by any Holder,\n\n           (b) Underwriting. If the registration of which the Acquiror gives\nnotice is for a registered public offering involving an underwriting, the\nAcquiror shall so advise the Holders as a part of the written notice given\npursuant to Section 2(a)(i). In such event the right of any Holder to\nregistration pursuant to this Section 2 shall be conditioned upon such Holder's\nparticipation in such underwriting and the inclusion of Registrable Securities\nin the underwriting to the extent provided herein. All Holders proposing to\ndistribute their securities through such underwriting shall, together with the\nAcquiror and Other Holders, if any, enter into an underwriting agreement in\ncustomary form with the managing underwriter selected for such underwriting by\nthe Acquiror. Notwithstanding any other provision of this Section 2, if the\nmanaging underwriter determines that marketing factors require a limitation of\nthe number of shares to be underwritten, the managing underwriter may limit the\nRegistrable Securities and other securities to be included in such registration.\nThe Acquiror shall so advise all Holders and Other Holders and the number of\nshares that may be included in the\n\n\n\n\n                                      -2-\n\n\nregistration and underwriting by all Holders and Other Holders shall be\nallocated among them, as nearly as practicable, first, to the Acquiror (or, if\napplicable, to the holders for whose account the Acquiror is registering the\nsecurities), second, among the Other Holders of securities in proportion to the\nrespective amounts of securities proposed to be included in the registration by\nsuch Other Holders, and, third, among the Holders in proportion to the number of\nRegistrable Securities proposed to be included in such registration by such\nHolders. If any Holder or Other Holder disapproves of the terms of any such\nunderwriting, such person may elect to withdraw therefrom by written notice to\nthe Acquiror and the managing underwriter. Any securities excluded or withdrawn\nfrom such underwriting shall be withdrawn from such registration.\n\n           (c) Right to Terminate Registration. The Acquiror shall have the\nright to terminate or withdraw any registration initiated by it under this\nSection 2 prior to the effectiveness of such registration whether or not any\nHolder or has elected to include Registrable Securities in such registration.\n\n        3. REGISTRATION ON FORM S-3.\n\n           (a) Request for Registration. If any Holder or Holders request that\nthe Acquiror file a registration statement on Form S-3 (or any successor form to\nForm S-3) for a public offering of shares of the Registrable Securities the\nreasonably anticipated aggregate price to the public of which would exceed\n$500,000, and the Acquiror is a registrant entitled to use Form S-3 to register\nthe Registrable Securities for such an offering, the Acquiror shall use its best\nefforts to cause such Registrable Securities to be registered for the offering\non such form and to cause such Registrable Securities to be qualified in such\njurisdictions as the Holder or Holders may reasonably request. The substantive\nprovisions of Section 2(b) shall be applicable to each registration initiated\nunder this Section 3.\n\n           (b) Limitations. Notwithstanding the foregoing, the Acquiror shall\nnot be obligated to take any action pursuant to this Section 3:(i) in any\nparticular jurisdiction in which the Acquiror would be required to execute a\ngeneral consent to service of process in effecting such registration,\nqualification or compliance unless the Acquiror is already subject to service in\nsuch jurisdiction and except as may be required by the Securities Act; (ii) if\nthe Acquiror, within ten (10) days of the receipt of the request of the\ninitiating Holders, gives notice of its bona fide intention to effect the filing\nof a registration statement with the Commission within thirty (30) days of\nreceipt of such request (other than with respect to a registration statement\nrelating to a Rule 145 transaction, an offering solely to employees or any other\nregistration which is not appropriate for the registration of Registrable\nSecurities), (iii) during the period starting with the date thirty (30) days\nprior to the Acquiror's estimated date of filing of, and ending on the date six\n(6) months immediately following, the effective date of any registration\nstatement pertaining to securities of the Acquiror (other than a registration of\nsecurities in a Rule 145 transaction or with respect to an employee benefit\nplan), provided that the Acquiror is actively employing in good faith all\nreasonable efforts to cause such registration statement to become effective;\n(iv) if the Acquiror shall furnish to such Holder a certificate signed by the\nPresident of the Acquiror stating that in the good faith judgment of the Board\nof Directors it would be seriously detrimental to the Acquiror or its\nshareholders for registration\n\n\n\n\n                                      -3-\n\n\nstatements to be filed in the near future. then the Acquiror's obligation to use\nits best efforts to file a registration statement shall be deferred for a period\nnot to exceed sixty (60) days from the receipt the request to file such\nregistration by such Holder, provided, however, that the Acquiror shall not\nutilize this right more than once in any twelve (12) month period, (v) after\nDecember 31, 1997 with respect to any Holder who is eligible to sell all of his\nRegistrable Securities Under Rule 144 of the Securities Act within any three (3)\nmonth period or (vi) more than once in any twelve (12) month period, and (vi)\nafter the Acquired has effected two (2) registration statements pursuant to this\nSection 3.\n\n        4. Expenses of Registration.\n\n           (a) Registration Expenses. The Acquiror shall bear all Registration\nExpenses incurred in connection with all registrations pursuant to Section 2 and\nSection 3.\n\n           (b) Selling Expenses. Unless otherwise stated, all Selling Expenses\nrelating to securities registered on behalf of the Holders and Other Holders\nshall be borne by the Holders and Other Holders pro rata on the basis of the\nnumber of shares so registered.\n\n        5. Registration Procedures. In the case of each registration,\nqualification or compliance effected by the Acquiror pursuant to this Agreement,\nthe Acquiror will:\n\n           (a) keep each Holder advised in writing as to the initiation of each\nregistration, qualification and compliance and as to the completion thereof, \n\n           (b) prepare and file with the Commission a registration statement and\nany amendments thereto with respect to such securities and use its best efforts\nto cause such registration statement to become and remain effective for at least\none hundred twenty (120) days or until the distribution described in the\nRegistration Statement has been completed; and\n\n           (c) furnish to the Holders participating in such registration and to\nthe underwriters of the securities being registered such reasonable number of\ncopies of the registration statement, preliminary prospectus, final prospectus\nand such other documents as such underwriters may reasonably request in order to\nfacilitate the public offering of such securities.\n\n        6. Indemnification.\n\n           (a) By Acquiror. The Acquiror will indemnify each Holder with respect\nto which registration, qualification or compliance has been effected pursuant to\nthis Agreement, and each underwriter, if any, and each person who controls any\nunderwriter within the meaning of Section 15 of the Securities Act, against all\nexpenses, claims, losses, damages or liabilities (or actions in respect\nthereof), including any of the foregoing incurred in settlement of any\nlitigation, commenced or threatened, arising out of or based on any untrue\nstatement (or alleged untrue statement) of a material fact contained in any\nregistration statement, prospectus, offering circular or other document, or any\namendment or supplement thereto, incident to any such registration,\nqualification or compliance, or\n\n\n\n\n                                      -4-\n\n\nbased on any omission (or alleged omission) to state therein a material fact\nrequired to be stated therein or necessary to make the statements therein, in\nlight of the circumstances in which they were made, not misleading, or any\nviolation or alleged violation by the Acquiror of the Securities Act, or the\nSecurities Exchange Act of 1934, as amended (the \"1934 Act\"), or any rule or\nregulation promulgated under the Securities Act or the 1934 Act applicable to\nthe Acquiror in connection with any such registration, qualification or\ncompliance, and the Acquiror will reimburse each such Holder, each such\nunderwriter and each person who controls any such underwriter, for any legal and\nany other expenses reasonably incurred in connection with investigating,\npreparing or defending any such claim, loss, damage, liability or action,\nprovided that the Acquiror will not be liable in any such case to the extent\nthat any such claim, loss, damage, liability or expense arises out of or is\nbased on any untrue statement or omission or alleged untrue statement or\nomission, made in reliance upon and in conformity with written information\nfurnished to the Acquiror by an instrument duly executed by such Holder,\ncontrolling person or underwriter and stated to be specifically for use therein.\nIf the Holders are represented by counsel other than counsel for the Acquiror,\nthe Acquiror will not be obligated under this Section 6(a) to reimburse legal\nfees and expenses of more than one separate counsel for Holders.\n\n           (b) By Holders. Each Holder will, if Registrable Securities held by\nsuch Holder are included in the securities as to which such registration,\nqualification or compliance is being effected, indemnify the Acquiror, each of\nits directors and officers, each underwriter, if any, of the Acquiror's\nsecurities covered by such a registration statement, each person who controls\nthe Acquiror or such underwriter within the meaning of Section 15 of the\nSecurities Act, and each other such Holder, against all claims, losses, damages\nand liabilities (or actions in respect thereof arising out of or based on any\nuntrue statement (or alleged untrue statement) of a material fact contained in\nany such registration statement, prospectus, offering circular or other\ndocument, or any omission (or alleged omission) to state therein a material fact\nrequired to be stated therein or necessary to make the statements therein not\nmisleading, and will reimburse the Acquiror, such Holders for any legal or any\nother expenses reasonably incurred by them in connection with investigating or\ndefending any such claim, loss, damage, liability or action, in each case to the\nextent, but only to the extent, that such untrue statement (or alleged untrue\nstatement) or omission (or alleged omission) is made in such registration\nstatement, prospectus, offering circular or other document in reliance upon and\nin conformity with written information furnished to the Acquiror by an\ninstrument duly executed by such Holder and stated to be specifically for use\ntherein. Notwithstanding the foregoing, the liability of each Holder under this\nsubsection (b) shall be limited in an amount equal to the public offering price\nof the shares sold by such Holder, unless such registration liability arises out\nof or is based on willful conduct by such Holder.\n\n           (c) Procedures. Each party entitled to indemnification under this\nSection 6 (the \"Indemnified Party\") shall give notice to the party required to\nprovide indemnification (the \"Indemnifying Party\") promptly after such\nIndemnified Party has actual knowledge of any claim as to which indemnity may be\nsought, and shall permit the Indemnifying Party to assume the defense of any\nsuch claim or any litigation resulting therefrom, provided that counsel for the\nIndemnifying Party, who shall conduct the defense of such claim or litigation,\nshall be approved by the Indemnified Party (whose approval shall not\nunreasonably be withheld), and the Indemnified Party may participate in\n\n\n\n\n                                      -5-\n\nsuch defense at such party's expense, and provided further that the failure of\nany Indemnified Party to give notice as provided herein shall not relieve the\nIndemnifying Party of its obligations under this Agreement unless the failure to\ngive such notice is materially prejudicial to an Indemnifying Party's ability to\ndefend such action and provided further that the Indemnifying Party shall not\nassume the defense for matters as to which there is a conflict of interest or\nseparate and different defenses. No Indemnifying Party, in the defense of any\nsuch claim or litigation, shall, except with the consent of each Indemnified\nParty, consent to entry of any judgment or enter into any settlement which does\nnot include as an unconditional term thereof the giving by the claimant or\nplaintiff to such Indemnified Party of a release from all liability in respect\nto such claim or litigation.\n\n        7. Information by Holder. Holders including any Registrable Securities\nin any registration shall furnish to the Acquiror such information regarding\nsuch Holders as shall be necessary to enable the Acquiror to comply with the\nprovisions hereof in connection with any registration, qualification or\ncompliance referred to in this Agreement.\n\n        8. Restrictive Legend. Each certificate representing Registrable\nSecurities shall be stamped or otherwise imprinted with a legend substantially\nin the following form, in addition to any legend that may now or hereafter be\nrequired by the California Department of Corporations or any other state\nsecurities law or regulation:\n\n           \"THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN\n           RESTRICTIONS ON SALE, TRANSFER, AND HYPOTHECATION AS SET FORTH IN A\n           REGISTRATION RIGHTS AGREEMENT BETWEEN THE ISSUER CORPORATION AND THE\n           REGISTERED HOLDER, OR SUCH HOLDER'S PREDECESSOR IN INTEREST. COPIES\n           OF SUCH AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER\n           CORPORATION AND WILL BE FURNISHED UPON REQUEST TO SUCH REGISTERED\n           HOLDER.\n\n        9. Miscellaneous.\n\n           (a) Governing Law. This Agreement will be governed by and construed\nunder the laws of California as applied to agreements among California residents\nentered into and to be performed entirely within California.\n\n           (b) Amendments and Waivers. Any term of this Agreement may be amended\nand the observance of any term of this Agreement may be waived (either generally\nor in a particular instance and either retroactively or prospectively), only\nwith the written consent of the Acquiror and the Holders of a majority of the\nRegistrable Securities, voting as a class. Any amendment or waiver effected in\naccordance with this paragraph will be binding upon each holder of any\nsecurities purchased under this Agreement at the time outstanding (including\nsecurities into which such securities are convertible), each future holder of\nall such securities and the Acquiror.\n\n\n\n\n\n                                      -6-\n\n\n           (c) Severability. In the event that any provision of this Agreement\nbecomes or is declared by a court of competent jurisdiction to be illegally\ninvalid, unenforceable or void, this Agreement shall continue in full force and\neffect without said provision. In such event, the parties shall negotiate, in\ngood faith, a legal, valid and binding substitute provision which most nearly\neffects the intent of the parties in entering into this Agreement.\n\n           (d) Notices. All notices to Holders will be mailed by registered or\ncertified mail to the addresses maintained in the Acquiror's records for such\nHolders. Notices will be effective three (3) days after deposit in the U.S.\nMail.\n\n           (e) Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which\ntogether will constitute one and the same instrument.\n\n           (f) Titles, Subtitles and Table of Contents. The titles, subtitles\nand table of contents used in this Agreement are used for convenience only and\nare not to be considered in construing or interpreting this Agreement.\n\n\n\n\n\n\n\n\n\n\n                                      -7-\n\n\n        IN WITNESS WHEREOF. the parties have executed this Registration Rights\nAgreement as of the date first above written.\n\n                                       ACQUIROR\n\n                                       CYBERMEDIA, INC.\n\n\n                                       By:              [SIG]\n                                           -------------------------------------\n                                       Name:\n                                       Title:\n\n                                       SHAREHOLDERS\n\n                                       MARK CARLSON\n\n\n                                       \/s\/ [SIG]\n                                       -----------------------------------------\n                                       MARK KLEIN\n\n\n                                       \/s\/ [SIG]\n                                       -----------------------------------------\n                                       DANA KEEN\n\n\n                                       FENWICK &amp; WEST\n\n\n\n                                       By:  \/s\/ [SIG]\n                                           -------------------------------------\n                                       Name:   MICHAEL PATRICK\n                                       Title:  Partner\n\n\n\n\n                                      -9-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7255],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9632,9629],"class_list":["post-43865","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cybermedia-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-securities__registration","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43865","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43865"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43865"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43865"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43865"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}