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EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of June 29, 2000 by and among Eltrax Systems, Inc., a Minnesota corporation (the
"Company"), and E.piphany, Inc. a Delaware corporation, (the "Holder").
RECITALS:
A. Pursuant to a Subscription Agreement of even date herewith (the
"SUBSCRIPTION AGREEMENT"), the Holder purchased shares of the Company's common
stock, par value $.01 per share (the "Common Shares"); and
B. As a condition precedent to the Holder's obligation to purchase the
Common Shares the Company has agreed to grant the Holder certain registration
rights with respect to the Common Shares received by the Holder pursuant to the
Subscription Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the
following definitions:
(a) "Common Stock" means the Company's common stock, par value $.01 per
share.
(b) "Merger" means the transaction by and among the Company, Solemn
Acquisition Corporation, a wholly owned subsidiary of the Company, and
Cereus Technology Partners, Inc., as described more fully in that
certain Merger Agreement by and among such parties dated June 12, 2000.
(c) "Person" means an individual, a partnership, a limited liability
company, a joint venture, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof, or any
other entity.
(d) "Registrable Securities" includes the Common Shares and any shares
of Common Stock issued or issuable with respect to the Common Shares by
way of stock dividend, stock split or in connection with a combination
of stock, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities on the date all of
such securities are eligible to be sold in a single ninety (90) day
period pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act.
(e) "Registration Period" means the period of one year following the
effective date of the Merger.
(f) "Registration Statement" means any registration statement of the
Company which covers any Registrable Securities pursuant to the
provisions of this Agreement.
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(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
2. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any of its securities under the
Securities Act (other than pursuant to (i) a registration on Form
S-4 or any successor form, or (ii) an offering of securities in
connection with an employee benefit plan, a stock option plan, a
stock dividend plan, a stock ownership plan or a dividend
reinvestment plan) at any time during the Registration Period and
the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration (each a
"Piggyback Notice") and, subject to Sections 2(b) and 2(c) below,
the Company shall include in such registration all Registrable
Securities with respect to which the Company has received written
requests for inclusion therein within fifteen (15) days after the
date of sending of the Company's notice (the "Included Registrable
Securities"); provided, however, that, at the Company's option, the
Company may file a separate Registration Statement for, and with
respect to, Included Registrable Securities in satisfaction of the
Company's obligation hereunder.
(b) If a Piggyback Registration is an underwritten registration that
includes primary shares to be sold on behalf of the Company, and
the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in an
orderly manner within a price range acceptable to the Company, the
Company shall include in such registration (i) first, the
securities the Company proposes to sell, and (ii) second, the
Registrable Securities requested to be included in such
registration and any other securities requested to be included in
such registration, pro rata among the Holder of Registrable
Securities requesting such registration and the holders of such
other securities on the basis of the number of shares owned by
each such holder. The Company warrants that the terms of this
Section 2(b) do not conflict with any other registration rights
granted to existing owners of the Company's securities.
(c) If a Piggyback Registration is an underwritten secondary
registration initiated by and on behalf of holders of the
Company's securities other than the Holder of Registrable
Securities pursuant to the exercise of demand registration rights,
and the managing underwriters advise the Company in writing that
in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to
the holders initially requesting such registration, the Company
shall include in such registration (i) first, all of the
securities requested to be included therein by the holders
initially requesting such registration, and (ii) second, the
Registrable Securities requested to be included in such
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registration and any other securities requested to be included in
such registration, pro rata among the Holder of Registrable
Securities requesting such registration and the holders of such
other securities on the basis of the number of shares owned by
each such holder.
(d) In the case of an underwritten Piggyback Registration, the Company
shall have the sole and exclusive right to select the investment
banker(s) and manager(s) to administer the offering.
3. REGISTRATION PROCEDURES. Whenever the Holder of Registrable
Securities has requested that any Registrable Securities be registered
pursuant to this Agreement, the Company shall use its reasonable best
efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof
and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect
to such Registrable Securities and use its reasonable best efforts
to cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective for the period required by the intended method of
disposition, and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth
in such Registration Statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such Registration Statement, each amendment and
supplement thereto, the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company shall not be
required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (ii) subject itself to taxation in any
such jurisdiction, (iii) consent to general service of process in
any such jurisdiction, or (iv) qualify such Registrable Securities
in a given jurisdiction where expressions of investment interest
are not sufficient in such jurisdiction to reasonably justify the
expense of qualification in the jurisdiction or where such
qualification would require the Company to register as a broker or
dealer in such jurisdiction).
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(e) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of
which the prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits any
material fact necessary to make the statements therein not
misleading, and, at the request of any such seller, the Company
shall prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and to be
qualified for trading on each system on which similar securities
issued by the Company are from time to time qualified;
(g) in the event of an underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such
offering; and
(h) 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 best efforts to promptly obtain the
withdrawal of such order.
The Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) or (h) hereof, such
Holder shall forthwith discontinue disposition of shares of Common Stock
pursuant to a Piggyback Registration until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 3(e) or
until the withdrawal of such order under Section 3(h).
4. REGISTRATION EXPENSES. The Company shall bear all costs and expenses
incident to the Company's performance of, or compliance with, this
Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company, all independent certified
public accountants of the Company and fees and expenses of other Persons
retained by the Company in connection with the distribution of the
Registrable Securities. The participating Holder shall pay all discounts
and commissions attributable to the Registrable Securities, all transfer
taxes relating to the sale or disposition of the Registrable Securities
and all fees and expenses of any attorney or accountant retained by the
Holder in connection with the registration of Registrable Securities.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each Holder of Registrable Securities, its officers, directors
and trustees and each Person who controls
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(within the meaning of the Securities Act) such Holder
against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material
fact contained in any Registration Statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same
are caused by or contained in any information furnished to
the Company in writing by such Holder expressly for use
therein or by such Holder's failure to deliver a copy of the
Registration Statement or prospectus or any amendments or
supplements thereto after the Company has furnished such
Holder with a sufficient number of copies of the same;
provided however, that such indemnification shall in no case
exceed the value of the Holder's Common Shares sold under
such Registration Statement. In connection with an
underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person
who controls (within the meaning of the Securities Act) such
underwriters to the same extent as provided above with
respect to the indemnification of the Holder of Registrable
Securities.
(b) In connection with any Registration Statement in which a Holder of
Registrable Securities is participating, each such Holder
shall furnish to the Company in writing such information as
the Company reasonably requests for use in connection with
any such Registration Statement or prospectus and, to the
extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls (within
the meaning of the Securities Act) the Company against any
losses, claims, damages, liabilities and expenses resulting
from any untrue or alleged untrue statement of material fact
contained in the Registration Statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any
information so furnished in writing by such Holder; provided
however, that such indemnification shall in no case exceed
the value of the Common Shares sold under such Registration
Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim
with respect to which it seeks indemnification and (ii)
unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party
shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless
in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party
and any other such indemnified parties with respect to such
claim.
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(d) If for any reason the indemnification provided for in the preceding
clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold such party harmless as contemplated by
the preceding clauses (a) and (b), then the indemnifying
party shall contribute to the amount paid or payable by the
indemnified party as a result of the loss, claim, damage,
liability or expense in the proportion as is appropriate to
reflect (i) the relative fault of the indemnified party and
the indemnifying party, and (ii) any other relevant equitable
considerations; provided however, that in no event shall any
party indemnify the indemnified party for an amount that
exceeds the value of the Holder's Common Shares sold under
such Registration Statement.
(e) The indemnities provided in this Section 5 shall survive the
Holder's transfer of any Registrable Securities.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements (as such arrangements are applicable to all
similarly situated Person's selling securities pursuant to such registration)
and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements (as such arrangements are applicable to
all similarly situated Person's selling securities pursuant to such
registration).
7. DISCLOSURE. With a view to making available to the Holder the
benefits of Rule 144 promulgated under the Securities Act, the Company agrees,
for a period of two years following the date of this Agreement, to:
(a) make and keep public information available within the meaning of
Rule 144(c) of the Securities 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(c) furnish to the 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 Rule 144 and the Exchange Act, (ii) a copy of
the most recent annual or quarterly report of the Company,
and (iii) such other reports, documents and other information
in the possession of or reasonably obtainable by the Company
as the Holder may reasonably request in availing itself of
Rule 144.
8. MISCELLANEOUS.
(a) The Company shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or
violates the rights granted to the Holder of Registrable
Securities in this Agreement.
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(b) Any Person having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights
granted by law. The parties agree and acknowledge that money
damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior
written consent of the Company and the Holder of a majority
of the then outstanding shares of Registrable Securities.
(d) All covenants and agreements in this Agreement by or on behalf of
any of the parties shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any
express assignment has been made, the provisions of this
Agreement which are for the benefit of purchasers or the
Holder of Registrable Securities are also for the benefit of,
and enforceable by, any subsequent holder of Registrable
Securities.
(e) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
Photographic or facsimile reproductions of this Agreement may
be made and relied upon to the same extent as the originals.
(g) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) This Agreement has been executed in, and shall be construed in
accordance with the laws of, the State of Georgia.
(i) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have
been given when delivered personally to the recipient, sent
to the recipient by reputable express courier service
(charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall
be sent to the Holder at the address indicated on the
Subscription Agreement and to the Company at the address
indicated below:
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400 Galleria Parkway
Suite 300
Atlanta, Georgia 30339
or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the
sending party.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth above.
COMPANY:
Eltrax Systems, Inc., a Minnesota corporation
By: /s/ William P. O'Reilly
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William P. O'Reilly, Chief Executive
Officer
HOLDER:
E.piphany, Inc., a Delaware corporation
By: /s/ Kevin Yeaman
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Name: Kevin Yeaman
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Title: CFO
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