Stock Purchase and Sale Agreement dated February 9, 2005 between, among others, Insignia Solutions plc, Kenora Ltd and the Sellers (as defined therein)

EX-10.97 2 f07163exv10w97.txt EXHIBIT 10.97 EXHIBIT 10.97 INSIGNIA SOLUTIONS, PLC REGISTRATION RIGHTS AGREEMENT MARCH 16, 2005 INSIGNIA SOLUTIONS, PLC REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (the "Agreement") is made as of the 16th day of March, 2005, by and among Insignia Solutions, PLC, a public limited company incorporated under the laws of England and Wales (registered number: 1961960) and the individuals and entities listed on the signature pages hereto (each a "Seller" and collectively the "Sellers"). RECITALS The Company and the Sellers, among others, have entered into a Stock Purchase and Sale Agreement dated February 9, 2005 (the "Purchase Agreement") pursuant to which the Company has agreed to purchase from each of the Sellers all of the outstanding shares of capital stock of Kenora Ltd. in exchange for that number of shares of American depositary shares ("ADSs") equal to the Total Buyer Shares less any Holdback Shares (each term as defined in the Purchase Agreement), each ADS representing one ordinary share, with a par value of 20 pence per share, of the Company (the "Purchased Shares") and other additional consideration. A condition to each Seller's obligations under the Purchase Agreement is that the Company enter into this Agreement in order to provide the Sellers with certain rights to register the Shares (as defined below). The Company desires to induce the Sellers to enter into and consummate the Purchase Agreement by agreeing to the terms and conditions set forth herein. All capitalized terms not otherwise defined herein shall have the meanings ascribed in the Purchase Agreement. AGREEMENT The parties hereby agree as follows: 1. REGISTRATION RIGHTS. The Company and the Sellers covenant and agree as follows: 1.1 DEFINITIONS. For purposes of this Section 1 (terms defined in the singular shall apply to the plural form and vice-versa): (a) 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 Securities Act of 1933, as amended (the "Act"), or any similar successor federal statute and the rules and regulations thereunder in effect from time to time, and the declaration or ordering of effectiveness of such Registration Statement or document by the SEC; (b) The term "Registrable Securities" means (i) the ADSs issued under the Purchase Agreement (such American depositary shares are collectively referred to hereinafter as the "Shares"), and (ii) any other Ordinary Shares (including ADSs) of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares, provided, that the foregoing definition shall exclude in all cases any Registrable Securities sold by a person in a transaction in which its rights under this Agreement are not assigned. Notwithstanding the foregoing, ADSs or other securities shall only be treated as Registrable Securities if and so long as they have not (A) been sold to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (B) been sold in a transaction exempt from the registration and prospectus delivery requirements of the Act under Section 4(1) thereof so that all transfer restrictions, and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale or (C) with regard to any individual Holder, become eligible for sale without limitation as to volume in any three month period pursuant to Rule 144; (c) The number of shares of "Registrable Securities then outstanding" shall be determined by the number of ADSs outstanding which are, and the number of shares of ADSs issuable pursuant to then exercisable or convertible securities which are, Registrable Securities; (d) The term "Holder" means any person owning or having the right to acquire Registrable Securities or any assignee thereof in accordance with this Agreement; (e) The term "Form S-3" means such form under the Act as in effect on the date hereof or any successor form under the Act; and (f) The term "SEC" means the Securities and Exchange Commission. 1.2 FORM S-3 REGISTRATION. (a) Registration. Subject to the terms and conditions of this Agreement, on or before the date that is three (3) days after the date of the effective filing by the Company of a Form 10-K with the SEC (the "Filing Deadline"), the Company will file with the SEC a Registration Statement on Form S-3 (the "Registration Statement") in order to register the Shares for registration thereon, and will use its reasonable best efforts to effect the Registration Statement as soon as practicable, subject to the terms of this Agreement, and effect any related qualification or compliance with respect to all Registrable Securities owned by the Holders as soon as practicable thereafter, subject to the Company's ability to defer filing the Registration Statement pursuant to subsection 1.2(b)(ii) below. (b) Mechanics. Pursuant to its obligations under Section 1.2(a) above, the Company will: (i) promptly give written notice of the registration, and any related qualification or compliance, to the Sellers; (ii) use its reasonable best efforts to effect such registration and all such qualifications and compliances as may be necessary and as would permit or facilitate the sale and distribution of all of the Sellers' Registrable Securities; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, -2- pursuant to this Section 1.2 if the Company shall furnish to the Sellers a certificate signed by the President of the Company stating that in the good faith reasonable judgment of the Board of Directors of the Company (with the concurrence of the managing underwriter, if any), the filing of the Registration Statement would adversely affect, or require premature disclosure of, any filing, financing, acquisition or reorganization involving the Company, in which event the Company shall have the right to defer the filing of the Registration Statement for a reasonable period of time, which shall not exceed thirty (30) days after the Filing Deadline under this Section 1.2; and (iii) any and all expenses incurred in connection with the Registration Statement filed pursuant to this Section 1.2 shall be borne by the Company, including all registration, filing, qualification, printers' and accounting fees but excluding any underwriters' discounts or commissions or fees and disbursements for counsel to the Sellers, provided however that the Company shall reimburse the Holders for up to $10,000 in fees and disbursements for a single counsel for the Sellers. 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 the Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective and to keep the Registration Statement effective until the earlier of: (i) two years after the Closing Date; (ii) the date when all of the Registrable Securities covered by the Registration Statement are sold; or (iii) the date when Rule 144(k) is available with respect to all of the securities covered by such Registration Statement. (b) Prepare and file with the SEC such amendments, including Registration Statements, 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. (d) Use its best 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) Notify each Holder of Registrable Securities covered by such Registration Statement at any time when a prospectus relating thereto is required to be -3- delivered under the Act of 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. In such circumstance, the Company will use reasonable commercial efforts to promptly update such prospectus to correct such untrue statement or disclose the necessary material facts within the period of time the Company may delay sales under Section 1.4(a)(iii) below. (f) 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. 1.4 RESTRICTIONS ON AND PROCEDURE FOR SALES PURSUANT TO A REGISTRATION STATEMENT. (a) Each Holder agrees to the following: (i) Notice to Company. If any Holder shall propose to sell any Shares, the Holder shall notify the Company of its intent to do so on or before one (1) business day prior to the date of such sale (the "Notice of Sale"), and the provision of the Notice of Sale to the Company shall conclusively be deemed to establish an agreement by such Holder to comply with the registration provisions herein described. The Notice of Sale shall be deemed to constitute a representation that any information previously supplied by such Holder is accurate as of the date of such Notice of Sale. (ii) Notice of Sale. The Notice of Sale in substantially the form attached as Exhibit A shall be given in accordance with the provisions of Section 3.5 hereof. However, the Holder may give the Notice of Sale orally by telephoning the Chief Financial Officer at the Company at ###-###-####. An oral Notice of Sale shall be deemed to have been received only at such time as the selling Holder speaks directly with the Chief Financial Officer. In addition, an oral Notice of Sale shall only be deemed effective if it is followed by a written Notice of Sale received by the Company by personal delivery or facsimile within twenty-four (24) hours after giving the oral Notice of Sale. (iii) Delay of Sale. The Company may refuse to permit the Holder to resell any Shares for a period of time not to exceed 30 days; provided, however, that in order to exercise this right, the Company must deliver a certificate in writing to the Holder to the effect that the Registration Statement in its then current form contains an untrue statement of material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. During any suspension period as contemplated by this Section 1.4 (a)(iii), of which there shall be no more than two (2) in any twelve (12) month period, the Company will not allow any of its officers or directors to buy or sell shares of the Company's securities. -4- (b) Representations of Holders. Each Holder hereby represents to and covenants with the Company that, during the period in which any Registration Statement effected pursuant to Section 1.2 remains effective, such Holder will: (i) not engage in any stabilization activity in connection with any of the Company's securities; (ii) cause to be furnished to any purchaser of the Shares and to the broker-dealer, if any, through whom Shares may be offered, a copy of the Prospectus; and (iii) not bid for or purchase any securities of the Company or any rights to acquire the Company's securities, or attempt to induce any person to purchase any of the Company's securities or any rights to acquire the Company's securities, in each case, other than as permitted under the Exchange Act. (c) INFORMATION FOR USE IN REGISTRATION STATEMENT. Each Holder covenants to the Company that such Holder will complete the information requested by the Selling Holder's Questionnaire attached as Exhibit B hereto (the "Questionnaire"), and further covenants to the Company that all information provided by such Holder in the Questionnaire will be true, accurate and complete as of the date provided. Each Holder understands that the written information in the Questionnaire and all written representations made in this Agreement are being provided to the Company specifically for use in, or in connection with, the Registration Statement and the Prospectus, and has executed this Agreement with such knowledge. 1.5 FURNISH INFORMATION. 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. 1.6 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 dispute that might arise with respect to the interpretation or implementation of this Section 1. 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, each Holder's affiliates, and their respective officers, directors, employees, representatives and agents, 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 Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Act, the Exchange Act or other federal or state law, -5- 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, in light of the circumstances in which they were made, not misleading, or (iii) any violation or alleged violation by the Company of the Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Act, the Exchange Act or any state securities law; and the Company will, to the extent permitted by law, pay to each such Holder, underwriter or controlling person, as incurred, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action for which the Company is liable under this subsection 1.7(a); provided, however, that the indemnity agreement contained in this subsection 1.7(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 which 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. (b) To the extent permitted by law, each selling Holder will severally 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, 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 Exchange Act or other federal or state law, 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 furnished by such Holder expressly for use in connection with such registration; and each such Holder will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 1.7(b), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 1.7(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 1.7(b) exceed the net proceeds from the offering received by such Holder, except in the case of willful fraud 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 -6- 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 which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable 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 therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall, to the extent permitted by law, 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; provided, that, in no event shall any contribution by a Holder under this Subsection 1.7(d) exceed the net proceeds from the offering received by such Holder, except in the case of willful fraud by such Holder. 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) 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. 1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making available to the Holders the benefits of Rule 144 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 or pursuant to a registration on Form S-3, the Company agrees, for so long as it remains subject to the periodic reporting requirements under Section 13 or 15(d) of the Exchange Act, to: (a) make and keep public information available, as those terms are understood and defined in Rule 144; -7- (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the Exchange Act; and (c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company as to its compliance with the reporting requirements of the Exchange Act and the rules and regulations promulgated thereunder, or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. 1.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to register Registrable Securities pursuant to this Section 1 may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of at least fifty percent (50%) of such securities, provided that the Company is 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; and provided, further, that such assignment shall be effective only if the transferee agrees to be bound by this Agreement and 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. For the purposes of determining the number of shares of Registrable Securities held by a transferee or assignee, the holdings of transferees and assignees of a partnership who are partners or retired partners of such partnership (including spouses and ancestors, lineal descendants and siblings of such partners or spouses who acquire Registrable Securities by gift, will or intestate succession) shall be aggregated together and with the partnership; provided that all assignees and transferees who would not qualify individually for assignment of registration rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices or taking any action under Section 1. 1.10 CERTAIN LIMITATIONS IN CONNECTION WITH FUTURE GRANTS OF REGISTRATION RIGHTS. From and after the date of this Agreement until the Registration Statement is declared effective by the SEC, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company providing for the granting to such holder of registration rights unless such registration rights, if more favorable than those granted herein, are extended to the Holders or their transferees permitted under paragraph 1.9. 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. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. -8- 2.2 GOVERNING LAW. This Agreement and all acts and transactions pursuant hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of laws. 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 herein, any notice required or permitted by this Agreement shall be in writing and shall be deemed duly given upon delivery, when delivered personally or by overnight courier or confirmed facsimile and addressed to a Holder to be notified at such party's address as set forth on the signature page hereto or to the Company at its address on its signature page hereto, or as subsequently modified by written notice. In the event that any date provided for in this Agreement falls on a Saturday, Sunday or legal holiday, such date shall be deemed extended to the next business day. Notwithstanding the foregoing, any notice delivered pursuant to Section 1.3(e) or Section 1.4 hereto must be made by personal delivery or confirmed facsimile transmission. 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 AMENDMENTS AND WAIVERS. 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 80% of the Registrable Securities then outstanding, provided, however, that any amendment hereof that would materially adversely affect a Holder in a manner different from the other Holders shall also require the consent of such adversely affected Holder. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Registrable Securities then outstanding, each future Holder of any such Registrable Securities, and the Company. 2.8 SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 2.9 ENTIRE AGREEMENT. This Agreement and the Purchase Agreement all dated as of the date hereof, and the other documents delivered pursuant hereto or contemplated hereby constitute the full and entire understanding and agreement between the parties with regard -9- to the subject matter hereof and thereof and supersede all prior agreements and understandings among the parties relating to the subject matter hereof. [Signature Pages Follow] -10- The parties have executed this Registration Rights Agreement as of the date first written above. COMPANY: INSIGNIA SOLUTIONS, PLC By: /s/ Mark McMillan ------------------------------------- Mark McMillan President and Chief Executive Officer Address: 41300 Christy Street Fremont, California 94538 SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT The parties have executed this Registration Rights Agreement as of the date first written above. ANDERS FUREHED /s/ Anders Furehed ------------------------------------------ (Signature) Address: _________________________________ _________________________________ _________________________________ NOEL MULKEEN /s/ Noel Mulkeen ------------------------------------------ (Signature) Address: _________________________________ _________________________________ _________________________________ SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT EXHIBIT A INSIGNIA SOLUTIONS PLC NOTICE OF SALE Pursuant to the Registration Rights Agreement dated as of March 16, 2005 by and between Insignia Solutions plc (the "Company") and the undersigned and other entities, the undersigned hereby gives notice to the Company of the undersigned's intent to sell [_______] shares of the Company's ADSs registered pursuant to the Registration Statement on (File No._____). Dated: ______________, 200__ By:______________________________________ (signature) Name:____________________________________ (print) Title:___________________________________ (if applicable) [NOTE: THIS NOTICE OF SALE MUST BE COMPLETED AND DELIVERED (VIA PERSONAL DELIVERY OR FACSIMILE) TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY ON OR BEFORE ONE (1) BUSINESS DAY BEFORE THE DATE OF SALE OF THE SHARES OF THE COMPANY'S ADSs REGISTERED PURSUANT TO THE REGISTRATION STATEMENT.] EXHIBIT B INSIGNIA SOLUTIONS, PLC SELLING STOCKHOLDER'S QUESTIONNAIRE AND COVENANTS [omitted]