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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of December 5, 2000, by and among Precise Software Solutions Ltd., an
Israeli corporation (the "Company"), and Richard North (the "Stockholders'
Agent"), as agent of and attorney-in-fact for the former stockholders (the
"Stockholders") of Savant Corporation, a Maryland corporation ("Savant").
RECITALS
The Company, Precise Acquisition Corporation, a Maryland corporation (the
"Subsidiary"), Savant and certain of the Stockholders have entered into an
Agreement and Plan of Merger dated as of October 27, 2000 (the "Merger
Agreement"), providing for the merger of Savant with and into the Subsidiary
(the "Merger"), resulting in Savant becoming a wholly-owned subsidiary of the
Company.
Pursuant to the Merger Agreement, the Stockholders will acquire the Closing
Shares (as defined in the Merger Agreement) and may acquire the Contingent
Shares (as defined in the Merger Agreement). The Closing Shares and the
Contingent Shares, to the extent issued, are collectively referred to as the
"Shares."
This Agreement is being entered into as a condition precedent to the
closing of the Merger and the parties desire that the Shares be subject to the
rights described herein.
NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties agree
as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Merger Agreement. As used in this
Agreement:
(a) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the Commission.
(c) "Registrable Securities" shall mean the Shares, as well as any
securities issued as a dividend or other distribution with respect to, or
in exchange or in replacement of, the Shares.
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(d) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute enacted hereafter, and the rules
and regulations promulgated thereunder, all as the same shall be in effect
from time to time.
(e) "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute enacted hereafter, and the rules
and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
2. REGISTRATION ON FORM F-3. After expiration of the Lock-up Period, if
(a) requested by holders of at least 50% of the Closing Shares and (b) the
Company is then eligible to file a registration statement on Form F-3, then the
Company shall (within 30 days) prepare and file with the Commission a
registration statement on Form F-3 or another appropriate form (the
"Registration Statement") under the Securities Act covering the resale from time
to time of all of the Registrable Securities pursuant to Rule 415 under the
Securities Act, and the Company shall use its best efforts to have the
Registration Statement declared effective as soon as practicable after the
filing date. If requested by holders of at least 50% of the Closing Shares, the
Company shall amend the Registration Statement promptly after issuance of any
Contingent Shares to register the resale of such Contingent Shares. The Company
shall keep the Registration Statement effective until the earlier of such time
as (i) all the Registrable Securities have been sold or (ii) the Registrable
Securities are eligible to be sold without volume or other restriction pursuant
to Rule 144 under the Securities Act (the "Registration Period").
3. REGISTRATION PROCEDURES. In connection with the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission such pre-effective and
post-effective amendments and supplements to such Registration Statement
and the prospectus used in connection with such Registration Statement as
may be necessary to cause the Registration Statement to become effective,
to keep the Registration Statement continuously effective during the
Registration Period and not misleading, and as may otherwise be required or
applicable under, and to comply with the provisions of, the Securities Act
with respect to the disposition of all Registrable Securities covered by
such Registration Statement during the Registration Period.
(b) Furnish to the Stockholders such number of copies of a
prospectus, including a preliminary prospectus, and each amendment or
supplement thereto, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(c) Promptly notify the Stockholders (i) when a prospectus or any
prospectus supplement or post-effective amendment is proposed to be filed
and, with respect to any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other federal or
state governmental authority for amendments or supplements to a
Registration Statement or related prospectus or for additional
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information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, and (v) of the occurrence of any event or circumstance that
makes any statement made in such Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any changes in such Registration Statement, prospectus or
documents so that, in the case of the Registration Statement and any
amendment or supplement thereto, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading, and
that in the case of the prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) Make every reasonable effort to avoid the issuance of, or, if
issued, obtain the withdrawal of, any order suspending the effectiveness of
a Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) If requested by the holders of at least 50% of the Closing
Shares, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the holders reasonably request
should be included therein regarding such holders or the plan of
distribution of the Registrable Securities and (ii) make all required
filings of the prospectus supplement or such post-effective amendment as
soon as practicable after the Company has received notification of such
matters to be incorporated in such prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to
take any action pursuant to this SECTION 3(e) that would, in the opinion of
outside counsel for the Company, violate applicable law.
(f) Upon the occurrence of any event contemplated by SECTION 3(c), as
promptly as practicable, prepare any required supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, the prospectus contained in the
Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) Use its reasonable best efforts to cause all Registrable
Securities registered by such Registration Statement to be listed on the
Nasdaq National market or such other
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securities exchange or automated quotation system, if any, on which similar
securities issued by the Company are then listed.
(h) The Company shall cooperate with the Stockholders to facilitate
the timely preparation and delivery of certificates representing the
Registrable Securities to be sold pursuant to the Registration Statement
free of any restrictive legends and in such denominations and registered in
such names as the Stockholders may request a reasonable period of time
prior to sales of the Registrable Securities pursuant to the Registration
Statement.
4. OBLIGATION TO FURNISH INFORMATION. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Agreement
with respect to the shares of a Stockholder that such Stockholder shall have
furnished to the Company such information regarding it, the Registrable
Securities held by it, and the intended method of disposition of such
Registrable Securities as the Company shall reasonably request and as shall be
required in connection with the action to be taken by the Company.
5. SUSPENSION OF DISPOSITION OF REGISTRABLE SECURITIES. Each
Participating Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in SECTION 3(c)(v), such
Stockholder will forthwith discontinue disposition of Registrable Securities
until such Stockholder's receipt of copies of a supplemented or amended
prospectus contemplated by SECTION 3(c)(v), or until it is advised in writing
(the "Advice") by the Company that the use of the prospectus may be resumed, and
has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus. If so directed by the Company, each
Stockholder will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in each Stockholder's possession,
of the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
Registration Period shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to SECTION
3(c)(v) to and including the date when each Stockholder shall have received the
copy of the supplemented or amended prospectus contemplated by SECTION 3(f) or
the Advice.
6. EXPENSES OF REGISTRATION. All expenses incurred in connection with the
registration pursuant to SECTION 2 (excluding any underwriters' discounts and
commissions), including, without limitation all registration and qualification
fees, fees and disbursements of counsel for the Company, shall be borne by the
Company.
7. INDEMNIFICATION.
(a) To the full extent permitted by law, the Company will, and hereby
does indemnify and hold harmless each Stockholder, each director, officer,
partner, employee, or agent for each Stockholder, any underwriter (as
defined in the Act) for each Stockholder, and each Person, if any, who
controls each Stockholder or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act
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and applicable state securities laws insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein in light of the circumstances under which they were made or
necessary to make the statements therein not misleading or arise out of any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration; and will
reimburse each such 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. The indemnity agreement contained
in this SECTION 7 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 nor shall the Company be liable to a
Stockholder, underwriter or controlling Person for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based
upon an untrue statement or an alleged untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by or on
behalf of such Stockholder, underwriter or controlling Person.
(b) To the full extent permitted by law, each Stockholder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Act, and any underwriter
for the Company (within the meaning of the Act), against any losses,
claims, damages or liabilities, joint or several, to which the Company or
any such director, officer, controlling Person or underwriter may become
subject, under the Securities Act and applicable state securities laws,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
such registration statement, preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished by such Stockholder expressly for use in connection
with such registration; and such Stockholder will reimburse any legal or
other expenses reasonably incurred by the Company or any such director,
officer, controlling person or underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action.
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(c) In no event shall the liability of any Stockholder under SECTION
7(b) be greater than the lesser of (a) their pro rata portion of any
liability based on the total liability of all Stockholders similarly
situated, or (b) the dollar amount of the gross proceeds received by such
Stockholder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(d) Promptly after receipt by an indemnified party under this SECTION
7 of notice of the commencement of any action or knowledge of a claim that
would, if asserted, give rise to a claim for indemnity hereunder, such
indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this SECTION 7, notify the indemnifying party
in writing of the commencement thereof or knowledge 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. The failure to notify an
indemnifying party promptly of the commencement of any such action or of
the knowledge of any such claim, if materially prejudicial to his ability
to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this SECTION 7, but the omission
so to notify the indemnifying party will not relieve him of any liability
that he may have to any indemnified party otherwise than under this
Section.
(e) If the indemnification provided for in this SECTION 7 is for any
reason, other than pursuant to the terms thereof, held to be unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Company and each Stockholder in connection with the
statements or omission which resulted in such losses, claims, damages,
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by the Company
or each Stockholder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each Stockholder agree that it would not be just
and equitable if contribution pursuant to this SECTION 7(e) were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
SECTION 7(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this SECTION 7(e) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim, but
shall be subject, in the case of a Stockholder, to the limitation of the
SECTION 7(c) above. No person guilty of fraudulent misrepresentation within
the meaning of Section 11(d) of the Securities Act
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shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
8. TERMINATION. This Agreement shall terminate upon expiration of the
Registration Period, provided that the rights and obligations of the parties
pursuant to SECTION 7 shall survive such termination.
9. RULE 144. During the Registration Period, the Company covenants that
it will use its best efforts to file the reports required to be filed by it (if
so required) under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Stockholder, use its best efforts to make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 under the Securities Act. The Company further covenants that it will
take such further action as any Stockholder may reasonably request, all to the
extent required from time to time to enable such Stockholder to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemptions provided by Rule 144 under the Securities Act. Upon the request of
any Stockholder, the Company will deliver to such Stockholder a written
statement as to whether it has complied with such information requirements.
10. REMEDIES. In case any one or more of the covenants and/or agreements
set forth in this Agreement shall have been breached by the Company or the
Stockholders, any of the Stockholders or the Company (as the case may be) may
proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance or injunctive
relief with respect to any such covenant or agreement contained in this
Agreement.
11. NOTICES. All notices or requests provided for or permitted to be given
pursuant to this Agreement must be in writing and may be given or served by (a)
depositing the same in the United States mail, addressed to the party to be
notified, postage paid, and registered or certified with return receipt
requested, or (b) by delivering such notice in person to such party. Notices so
deposited in the mail shall be deemed to have been given or served on the date
on which the party actually received or refused such written notice, as shown by
the date or postmark of any return receipt indicating the date of delivery or
attempted delivery to such receiving party. The addresses of the parties hereto
for all purposes of this Agreement are:
If to the Company: With a copy to:
690 Canton Street Piper Marbury Rudnick & Wolfe LLP
Westwood, MA 02090 1200 Nineteenth Street, N.W.
Fax: (781) 461-0700 Washington, DC 20036-2412
Attn: J. Benjamin H. Nye Fax: (202) 223-2085
Attn: Anthony H. Rickert, Esq.
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If to the Stockholders or the Stockholders' And to:
Agent:
Richard North Odin, Feldman & Pittleman, P.C.
Miller & Smith 9302 Lee Highway. Suite 1100
1568 Springhill Road Fairfax, VA 22031
Fourth Floor Fax: (703) 218-2160
McLean, VA 22102 Attn: Thomas N. Tartaro, Esq.
By giving to the other parties at least five (5) days' written notice thereof,
any party hereto shall have the right from time to time and at any time during
the term of this Agreement to change his respective address and each party shall
have the right to specify as his address any other address within the United
States of America.
12. GRANT OF OTHER REGISTRATION RIGHTS. From time to time, the Company may
grant registration rights to any other holder of any of the capital stock of the
Company.
13. BINDING AGREEMENT. This Agreement and each provision herein shall be
binding upon and applicable to, and shall inure to the benefit of, the
Stockholders, their permitted assigns and legal representatives.
14. CONSENTS AND WAIVERS. No consent or waiver, express or implied, by any
party hereto of the breach, default or violation by any other party hereto of
his obligations hereunder shall be deemed or construed to be a consent or waiver
to or of any other breach, default or violation of the same or any other
obligations of such party hereunder. Failure on the part of any party hereto to
complain of any act of any of the other parties or to declare any of the other
parties hereto in default, irrespective or how long such failure continues,
shall not constitute a waiver by such party of his rights hereunder.
15. APPLICABLE LAW. This Agreement and all questions relating to its
validity, interpretation and performance shall be governed by and construed in
accordance with the laws of the State of Delaware.
16. PRIOR AGREEMENTS; AMENDMENTS. This Agreement supersedes any prior or
contemporaneous understanding or agreement among the parties respecting the
subject matter hereof. There are no arrangements, understandings or agreements,
oral or written, among the parties hereto relating to the subject matter of this
Agreement, except those fully expressed herein or in documents executed
contemporaneously herewith. No change or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change or modification or
waiver shall be in writing and signed by the Stockholders' Agent, and such
change or modification shall be binding on all holders of Registrable
Securities.
17. CAPTIONS. The captions used in this Agreement are for convenience only
and shall not be construed in interpreting this Agreement. Whenever the context
so required, the neuter
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shall include the feminine and masculine, and the singular shall include the
plural, and conversely.
18. HEADINGS. All Section headings herein have been inserted for
convenience of reference only and shall in no way modify or restrict any of the
terms or provisions hereof.
19. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original for all purposes, but all of
which taken together shall constitute only one agreement. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
PRECISE SOFTWARE SOLUTIONS LTD.
By: /s/ Shimon Alon
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Name: Shimon Alon
Title: President and CEO
STOCKHOLDERS' AGENT
/s/ Richard North
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Name: Richard North
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