EXHIBIT 6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made as of the 14th day of December, 2000, by and among
Uproar Inc., a Delaware corporation (the "Company"), and
the persons listed on Schedule A hereto, each of whom is
herein referred to as a "Target Stockholder."
RECITALS
1. The Company, Trafficmarketplace.com, Inc., a Delaware
corporation ("Target"), and certain other parties are entering
into an Agreement and Plan of Reorganization, dated as of
December 6, 2000 (the "Merger Agreement"), pursuant to which
Trafficmarketplace.com Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of the Company, will
be merged with and into Target (the "Merger").
2. Upon the consummation of the Merger and in connection
therewith, the Target Stockholders will become the owners of
shares of Common Stock of the Company, par value $0.01 per
share (the "Common Stock"), to be issued pursuant to an
exemption to the Act (as defined below).
3. The parties hereto desire to enter into this Agreement
in order to set forth the rights of the Target Stockholders to
register the Common Stock received pursuant to the Merger
Agreement and certain other matters as set forth herein.
4. The Target Stockholders understand and acknowledge that
the Company is entitled to rely on (i) the truth and accuracy
of each Target Stockholder's representations contained herein
and (ii) each Target Stockholder's performance of the
obligations set forth herein.
NOW, THEREFORE, in consideration of the promises and
the mutual agreements, provisions and covenants set forth in
the Merger Agreement and in this Agreement, it is hereby agreed
as follows:
1. Registration Rights. The Company covenants and agrees
as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of
1933, as amended.
(b) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any
assignee thereof in accordance with Section 1.9 hereof.
(c) The term "1934 Act" means the Securities
Exchange Act of 1934, as amended.
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(d) 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 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(e) The term "Registrable Securities" means (i)
the Common Stock sold or issued to the Target Stockholders
pursuant to the Merger Agreement and (ii) any Common Stock
of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to,
or in exchange for, or in replacement of, the shares referenced
in (i) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his
rights under this Section 1 are not assigned.
(f) The number of shares of "Registrable
Securities" outstanding shall be determined by the number of
shares of Common Stock outstanding that are, and the number
of shares of Common Stock issuable pursuant to then-exercisable
or convertible securities that are, Registrable Securities.
(g) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 Company Registration.
(a) If at any time, or from time to time, prior
to the termination of registration rights pursuant to Section
1.10 (but without any obligation to do so), the Company
proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the
Holders) any of its stock or other securities under the Act
in connection with the public offering of such securities or
for the account of its stockholders (other than a registration
relating solely to the sale of securities to participants in
a Company stock plan, or a registration relating to a corporate
reorganization or other transaction under Rule 145 of the
Act), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written
request of each Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with
Section 2.5, the Company shall, subject to the provisions of
Section 1.2(c), use best efforts to cause to be registered
under the Act all of the Registrable Securities that each such
Holder has requested to be registered.
(b) Right to Terminate Registration. The Company
shall have the right to terminate or withdraw any registration
initiated by it under this Section 1.2 prior to the
effectiveness of such registration whether or not any Holder
has elected to include securities in such registration. The
expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 1.5 hereof.
(c) Underwriting Requirements. In connection
with any offering involving an underwriting of shares of the
Company's capital stock, the Company shall not be required
under this Section 1.2 to include any of the Holders'
securities in such underwriting unless they accept the terms
of the underwriting as agreed upon between the Company and
the underwriters selected by it (or by other persons entitled
to select the underwriters) and enter into
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an underwriting agreement in customary form with an underwriter
or underwriters selected by the Company, and then only in
such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering
by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold
other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in
the offering only that number of such securities, including
Registrable Securities, that the underwriters determine in
their sole discretion will not jeopardize the success of the
offering (the securities so included to be apportioned pro
rata among the selling Holders according to the total amount
of securities entitled to be included therein owned by each
selling Holder or in such other proportions as shall mutually
be agreed to by such selling Holders), provided that the
securities to be excluded pursuant to this Section 1.2 shall
be determined in the following sequence: (i) first, securities
held by any stockholders (other than the Holders holding the
Registrable Securities) or their assignees, who have
contractual registration rights that were in effect after the
date hereof, (ii) second, Registrable Securities held by each
selling Holder and (iii) third, securities held by any other
stockholders (other than Holders holding the Registrable
Securities), or their assignees, who have a contractual
registration right pursuant to an agreement that was in
effect prior to the date hereof. For purposes of the preceding
parenthetical concerning apportionment, for any selling
stockholder that is a Holder of Registrable Securities and
that is a partnership or corporation, the partners, retired
partners and stockholders of such Holder, or the estates and
family members of any such partners and retired partners and
any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "selling Holder," and any pro
rata reduction with respect to such "selling Holder" shall be
based upon the aggregate amount of Registrable Securities
owned by all such related entities and individuals.
1.3 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably
possible:
(a) prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use
all reasonable efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up
to one hundred twenty (120) days or, if earlier, until the
distribution contemplated in the Registration Statement has
been completed;
(b) 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 Act with respect to the disposition of all securities
covered by such registration statement;
(c) furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as
they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
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(d) use all reasonable efforts to register and
qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders,
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;
(e) 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;
(f) notify each Holder of Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Act or 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;
(g) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed;
and
(h) provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a
CUSIP number for all such Registrable Securities, in each
case not later than the effective date of such registration.
1.4 Information from Holder. It shall be a condition
precedent to the obligations of the Company to take any action
pursuant to this Section 1 with respect to the Registrable
Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect
the registration of such Holder's Registrable Securities.
1.5 Expenses of Registration. All expenses (other than
underwriting discounts and commissions incurred in connection
with registrations), filings or qualifications pursuant to
Section 1.2, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company shall be
borne by the Company. Notwithstanding the foregoing, the
Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities
to be registered (in which case all participating Holders
shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be requested in the
withdrawn registration).
1.6 Delay of Registration. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or
implementation of this Section 1.
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1.7 Indemnification. In the event any Registrable
Securities are included in a registration statement under this
Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners or
officers, directors and stockholders of each Holder, legal
counsel and accountants for each Holder, any underwriter
(as defined in the Act) for such Holder and each person, if
any, who controls such Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses,
claims, damages or liabilities (joint or several) to which
they may become subject under the Act, the 1934 Act or any
state securities laws, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions
or violations (collectively a "Violation"): (i) 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, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state
securities laws or any rule or regulation promulgated under
the Act, the 1934 Act or any state securities laws; and the
Company will reimburse each such Holder, 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 agreement contained in this
subsection l.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 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 a Violation that occurs 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 the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the
benefit of any Holder or underwriter, or any person
controlling such Holder or underwriter, from whom the person
asserting any such losses, claims, damages or liabilities
purchased shares in the offering, if a copy of the prospectus
(as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Holder or underwriter to such
person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the shares to
such person, and if the prospectus (as so amended or
supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(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 Act, legal counsel and
accountants for the Company, any underwriter, any other Holder
selling securities in such registration statement and any
controlling person of any such underwriter or other Holder,
against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become
subject, under the Act, the 1934 Act or any state securities
laws, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in
conformity with written information
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furnished by such Holder expressly for use in connection with
such registration; and each such Holder will reimburse any
person intended to be indemnified pursuant to this subsection
l.7(b), for any legal or other expenses reasonably incurred
by such person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this
subsection l.7(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 consent of the Holder
(which consent shall not be unreasonably withheld), provided
that in no event shall any indemnity under this subsection
l.7(b) exceed the gross proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.7 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 1.7,
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 noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with
all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented
by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party
under this Section 1.7, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise
than under this Section 1.7.
(d) If the indemnification provided for in this
Section 1.7 is held by a court of competent jurisdiction to
be unavailable to an indemnified party with respect to any
loss, liability, claim, damage or expense referred to herein,
then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a
material fact relates to information supplied by the
indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution
contained in the underwriting agreement entered into in
connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
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(f) The obligations of the Company and Holders
under this Section 1.7 shall survive the completion of any
offering of Registrable Securities in a registration
statement under this Section 1, and otherwise.
1.8 Reports Under Securities Exchange Act of 1934. With
a view to making available to the Holders the benefits of
Rule 144 promulgated under the 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:
(a) make and keep public information available,
as those terms are understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all
reports and other documents required of the Company under
the Act and the 1934 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.
1.9 Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant
to this Section 1may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such
securities that is a Holder's family member or trust for the
benefit of an individual Holder, provided: (a) the Company
is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee
or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee
or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement; and (c) such
assignment shall be effective only if immediately following
such transfer the further disposition of such securities by
the transferee or assignee is restricted under the Act.
1.10 Termination of Registration Rights. No Holder shall
be entitled to exercise any right provided for in this
Section 1 after December 14, 2002 or, as to any Holder,
such earlier time at which all Registrable Securities held
by such Holder (and any affiliate of the Holder with whom such
Holder must aggregate its sales under Rule 144) can be sold in
any three (3)-month period without registration in compliance
with Rule 144 of the Act; notwithstanding the foregoing, this
Agreement shall continue with respect to any Holder who is
considered an "affiliate" of the Company for so long as such
Holder continues to hold Registrable Securities.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise
provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities).
Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or
their respective
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successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of New York as
applied to agreements among New York residents entered into
and to be performed entirely within New York.
2.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not
to be considered in construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal
delivery to the party to be notified or upon delivery by
confirmed facsimile transmission, nationally recognized
overnight courier service, or upon deposit with the United
States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties.
2.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.7 Entire Agreement: Amendments and Waivers. This
Agreement (including the Exhibits hereto, if any) constitutes
the full and entire understanding and agreement among the
parties with regard to the subjects hereof and thereof. Any
term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or
prospectively), only with the written consent of the Company
and the holders of a majority of the Registrable Securities.
Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Registrable
Securities each future holder of all such Registrable
Securities, and the Company.
2.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law,
such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in
accordance with its terms.
2.9 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons
shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
UPROAR INC.
By: /s/ KENNETH D. CRON
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Name: Kenneth D. Cron
Title: Chairman of the Board and Chief
Executive Officer
