Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) is made and entered into as of January 21,
2009 (the “Closing Date”), by and among Superfly
Advertising, Inc., a Delaware corporation (the
“Company”) and the Holders (as defined herein) set
forth on the signature pages hereto.
WITNESSETH:
WHEREAS, the Company has entered into that
certain Amended and Restated Asset Purchase Agreement, by and among
the Company, Superfly Advertising, Inc., an Indiana corporation and
a wholly-owned subsidiary of the Company (“Superfly
Sub”), Commerce Planet, Inc., a Utah corporation
(“Commerce Planet”), Legacy Media LLC, a California
limited liability company (“Legacy”), and Consumer
Loyalty Group LLC, a California limited liability company
(“CLG”), dated as of December 16, 2008, whereby the
Company, through Superfly Sub, has acquired certain assets of
Legacy and CLG.
WHEREAS, in connection with the acquisition of
certain assets of Legacy and CLG (the “Acquisition
Transactions”), the Company wishes to grant registration
rights to certain of the parties hereto who received or may receive
in the future Common Stock (as defined herein) of the Company in
connection with the Acquisition Transactions.
WHEREAS, the Holders are Beneficial Owners of
Registrable Securities (as defined herein).
NOW, THEREFORE, in consideration of the premises
and of the mutual agreements, covenants and provisions herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER MATTERS
Section 1.1 Definitions . Capitalized
terms used in this Agreement without other definition shall, unless
expressly stated otherwise, have the meanings specified in this
Section 1.1:
(a) “Affiliate”
shall mean any person who is an “affiliate” as defined
in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act (as defined below).
(b) “Agreement”
has the meaning ascribed to such term in the preamble.
(c) “Beneficial
Owner” has the meaning set forth in Rule 13d-3 under the
Exchange Act.
(d) “Board”
means the Board of Directors of the Company.
(e) “Certificate
of Incorporation” means the Certificate of Incorporation of
the Company, as filed with the Delaware Secretary of State on
November 12, 2008, as amended or restated from time to
time.
(f) “Common
Stock” means the common stock, par value $0.001 per share of
the Company.
(g) “Company”
has the meaning ascribed to such term in the preamble.
(h) “Exchange
Act” means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated
thereunder.
(i) “Governmental
Authority” means any national, local or foreign (including
U.S. federal, state or local) or supranational (including European
Union) governmental, judicial, administrative or regulatory
(including self-regulatory) agency, commission, department, board,
bureau, entity or authority of competent jurisdiction.
(j) “Holder”
means Commerce Planet and any shareholder of Commerce Planet that
receives as Registrable Securities as a dividend or other
shareholder distribution directly from Commerce Planet so long as
such persons are the Beneficial Owners of Registrable
Securities.
(k) “Indemnified
Parties” has the meaning ascribed to such term in Section
2.5.
(l) “Registration
Expenses” means any and all expenses incident to the
performance of or compliance with any registration or marketing of
securities, including all (i) registration and filing fees, and all
other fees and expenses payable in connection with the listing of
securities on any securities exchange or automated interdealer
quotation system, (ii) fees and expenses of compliance with any
securities or “blue sky” laws (including reasonable
fees and disbursements of counsel in connection with “blue
sky” qualifications of the securities registered), (iii)
expenses in connection with the preparation, printing, mailing and
delivery of any registration statements, prospectuses and other
documents in connection therewith and any amendments or supplements
thereto, (iv) security engraving and printing expenses, (v)
internal expenses of the Company (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties), (vi) customary fees and expenses for
independent certified public accountants retained by the Company
(including the expenses relating to any comfort letters or costs
associated with the delivery by independent certified public
accountants of any comfort letters requested pursuant to Section
2.6(h)), (vii) reasonable fees and expenses of any special experts
retained by the Company in connection with such registration,
(viii) reasonable fees, out-of-pocket costs and expenses of the
Company, including counsel for the Company, (ix) reasonable fees,
out-of-pocket costs and expenses of one counsel to the selling
shareholders, (x) fees and expenses in connection with any review
by the Financial Industry Regulatory Authority, Inc.
(“FINRA”) of the underwriting arrangements or other
terms of the offering, and all fees and expenses of any
“qualified independent underwriter,” including the
reasonable fees and expenses of any counsel thereto,
(xi) costs of printing and producing any agreements
among underwriters, underwriting agreements, any “blue
sky” or legal investment memoranda and any selling agreements
and other documents in connection with the offering, sale or
delivery of the Registrable Securities, (xii) transfer
agents’ and registrars’ fees and expenses and the fees
and expenses of any other agent or trustee appointed in connection
with such offering, (xiii) expenses relating to any analyst or
investor presentations or any “road shows” undertaken
in connection with the registration, marketing or selling of the
Registrable Securities, (xiv) fees and expenses payable in
connection with any ratings of the Registrable Securities,
including expenses relating to any presentations to rating agencies
and (xv) all out-of-pocket costs and expenses incurred by the
Company or its appropriate officers in connection with their
compliance with Section 2.2(l).
(m) “Registrable
Securities” shall mean shares of Common Stock beneficially
owned by the Holders on the Closing Date or acquired by the Holders
as a dividend or other shareholder distribution directly from
Commerce Planet. For purposes of this Agreement, (i) Registrable
Securities shall cease to be Registrable Securities when a
Registration Statement covering such Registrable Securities has
been declared effective under the Securities Act by the SEC and
such Registrable Securities have been disposed of pursuant to such
effective Registration Statement and (ii) the Registrable
Securities of a Holder shall not be deemed to be Registrable
Securities at any time when the entire amount of such Registrable
Securities proposed to be sold in a single sale constitutes less
than 1% of the then outstanding shares of Common Stock or, in the
written opinion of counsel satisfactory to the Company, in its
reasonable judgment, may be sold to the public pursuant to Rule
144(k) (or any successor provision then in effect) under the
Securities Act in any three-month period or any such Registrable
Securities have been sold in a sale made pursuant to Rule 144 of
the Securities Act.
(n) “Rule
415” shall mean Rule 415 promulgated under the Securities
Act, as amended from time to time, or any similar rule thereto that
may be promulgated by the SEC.
(o)
“Subsidiary” means, with respect to any person, any
corporation, limited liability company, company, partnership,
trust, association or other legal entity or organization of which
such person (either directly or through one or more subsidiaries of
such person) (a) owns, directly or indirectly, a majority of the
capital stock or other equity interests the holders of which are
generally entitled to vote for the election of the board of
directors or other governing body of such corporation, limited
liability company, partnership, trust, association or other legal
entity or organization, or (b) is otherwise entitled to exercise
(1) a majority of the voting power generally in the election of the
board of directors or other governing body of such corporation,
limited liability company, partnership, trust, association or other
legal entity or organization or (2) control of such corporation,
limited liability company, partnership, trust, association or other
legal entity or organization.
(p) “Transfer”
means, in respect of any shares of Common Stock, property or other
asset, any sale, assignment, transfer, distribution or other
disposition thereof, whether voluntarily or by operation of
Law.
(q) “Underwritten
Offering” means a firm commitment underwritten public
offering pursuant to an effective registration statement under the
Securities Act, other than pursuant to a registration statement on
Forms S-4 or S-8 or any similar or successor form.
Section 1.2 Definitions Generally .
Wherever required by the context of this Agreement, the singular
shall include the plural and vice versa, and the masculine gender
shall include the feminine and neutral genders and vice versa, and
references to any agreement, document or instrument shall be deemed
to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. When used
herein:
(a) the
word “or” is not exclusive;
(b) the
words “including,” “includes,”
“included” and “include” are deemed to be
followed by the words “without limitation”;
(c) the
terms “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular section,
paragraph or subdivision;
(d) the
word “person” means any individual, corporation,
limited liability company, trust, joint venture, association,
company, partnership or other legal entity or a government or any
department or agency thereof or self-regulatory organization;
and
(e) all
section, paragraph or clause references not attributed to a
particular document shall be references to such parts of this
Agreement, and all exhibit, annex and schedule references not
attributed to a particular document shall be references to such
exhibits, annexes and schedules to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Registration . The
Company shall use its reasonable best efforts to register under the
Securities Act all of the Registrable Securities, as promptly as
reasonably practicable, which registration may include shares of
Common Stock registered for its own account or that of other
Company shareholders.
Section 2.2 Registration Procedures . The
Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance
with the intended method of disposition thereof as promptly as
practicable, and, as applicable:
(a) The
Company shall, as expeditiously as reasonably practicable, prepare
and file with the SEC a registration statement on any form for
which the Company then qualifies or that counsel for the Company
shall deem appropriate and which form shall be available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and
use its reasonable best efforts to: (i) cause such filed
registration statement to become and remain effective, and (ii)
promptly update such registration statement so that it does not
contain an 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, until all of the Registrable
Securities included in such registration statement shall have
actually been sold thereunder; provided that, at the request of any
Holder, the intended method of distribution relating to the sale of
the Registrable Securities to be registered thereunder shall
provide for individual Holders to be named as selling shareholders
under such registration statement.
(b) Prior
to filing a registration statement or prospectus or any amendment
or supplement thereto, the Company shall, if requested, furnish to
each Holder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such
registration statement as proposed to be filed, and thereafter the
Company shall furnish to each Holder and underwriter, if any, such
number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 or Rule 430A under the Securities Act and such
other documents as a Holder or underwriter may reasonably request
in order to facilitate the disposition of the Registrable
Securities owned by such Holder. The Holders shall have the right
to request that the Company modify any information contained in
such registration statement, amendment and supplement thereto
pertaining to the Holders, and the Company shall use its reasonable
best efforts to comply with such request, provided, however, that
the Company shall not have any obligation so to modify any
information if the Company reasonably expects that so doing would
cause the prospectus to contain an 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.
(c) After
the filing of the registration statement, the Company shall (i)
cause the related prospectus to be supplemented by any required
prospectus supplement, and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act, (ii) comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement
during the applicable period in accordance with the intended
methods of disposition by the Holders thereof set forth in such
registration statement or supplement to such prospectus and (iii)
promptly notify the Holders of any stop order issued or threatened
by the SEC or any state securities commission and take all
reasonable best efforts to prevent the entry of such stop order or
to remove it if entered.
(d) The
Company shall use its reasonable best efforts to (i) register or
qualify the Registrable Securities covered by such registration
statement under such other securities or “blue sky”
laws of such jurisdictions in the United States as the Holders
reasonably (in light of the Holders’ intended plan of
distribution) requests and (ii) cause such Registrable Securities
to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to
enable a Holder to consummate the disposition of the Registrable
Securities owned by such Holder, provided that the Company shall
not be required to (A) qualify generally to do business in any
jurisdiction where it would
