EX-10.2






Exhibit 10.2




INVESTOR RIGHTS AGREEMENT




     This Investor Rights Agreement (this “Agreement”) is made and entered into as of July
24, 2008 among AXS-One Inc., a Delaware corporation (the “Company”), and each of the
purchasers executing this Agreement and listed on Schedule 1 attached hereto (collectively,
the “Purchasers”).



     This Agreement is being entered into pursuant to the Convertible Note and Warrant Purchase
Agreement, dated as of the date hereof, by and among the Company and the Purchasers (the
“Purchase Agreement”).



     The Company and the Purchasers hereby agree as follows:



     1. Definitions.



     Capitalized terms used and not otherwise defined herein shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the
following meanings:



     “Advice” shall have the meaning set forth in Section 3(m).



     “Affiliate” means, with respect to any Person, any other Person that directly or
indirectly controls or is controlled by or under common control with such Person. For the purposes
of this definition, “control,” when used with respect to any Person, means the possession, direct
or indirect, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
of “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing.



     “Blackout Period” shall have the meaning set forth in Section 3(n).



     “Board” shall have the meaning set forth in Section 3(n).



     “Business Day” means any day except Saturday, Sunday and any day which shall be a
legal holiday or a day on which banking institutions in the State of New Jersey generally are
authorized or required by law or other government actions to close.



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means the Company’s Common Stock, par value $0.01 per share.



     “Conversion Shares” means the shares of Common Stock issuable upon conversion of the
Notes purchased by the Purchasers pursuant to the Purchase Agreement.



     “Effectiveness Date” means, with respect to the Initial Registration Statement
required to be filed hereunder, the 60th calendar day following the Filing Date (or, in
the event of a “review” by the Commission, the 90th calendar day following the Filing Date) and
with respect to any additional Registration Statements which may be required pursuant



 









 







to Section 3(b), the 60th calendar day following the date on which an additional
Registration Statement is required to be filed hereunder; provided, however, that
in the event the Company is notified by the Commission that one or more of the above Registration
Statements will not be reviewed or is no longer subject to further review and comments, the
Effectiveness Date as to such Registration Statement shall be no later than the fifth trading day
following the date on which the Company is so notified if such date precedes the dates otherwise
required above.



     “Effectiveness Period” shall have the meaning set forth in Section 2.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Filing Date” means May 29, 2009 and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(b), the earliest practical date on which the
Company is permitted by SEC Guidance to file such additional Registration Statement related to the
Registrable Securities.



     “Holder” or “Holders” means the holder or holders, as the case may be, from
time to time of Registrable Securities, including without limitation the Purchasers and their
assignees.



     “Indemnified Party” shall have the meaning set forth in Section 5(c).



     “Indemnifying Party” shall have the meaning set forth in Section 5(c).



     “Initial Registration Statement” means the initial Registration Statement which
includes the Initial Shares filed pursuant to this Agreement.



     “Initial Shares” means a number of Registrable Securities equal to the lesser of (i)
the total number of Registrable Securities, (ii) one-third of the number of issued and outstanding
shares of Common Stock that are held by non-affiliates of the Company on the day immediately prior
to the filing date of the Initial Registration Statement and (iii) such lesser amount of
Registrable Securities as may be required by SEC Guidance.



     “Losses” shall have the meaning set forth in Section 5(a).



     “Notes” means the Series D 6% Secured Convertible Promissory Notes issued to the
Purchasers pursuant to the Purchase Agreement.



     “Person” means an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind.



     “Proceeding” means an action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as a deposition), whether
commenced or threatened.



     “Prospectus” means the prospectus included in any Registration Statement



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(including, without limitation, a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference in such Prospectus.




     “Registrable Securities” means (a) the Conversion Shares and the Warrant Shares
(without regard to any limitations on beneficial ownership contained in the Note or the Warrants)
or other securities issued or issuable to each Purchaser or its transferee or designee (i) upon
conversion of the Notes and/or upon exercise of the Warrants, or (ii) upon any dividend or
distribution with respect to, any exchange for or any replacement of such Notes, Conversion Shares,
Warrants or Warrant Shares or (iii) upon any conversion, exercise or exchange of any securities
issued in connection with any such distribution, exchange or replacement; (b) securities issued or
issuable upon any stock split, stock dividend, recapitalization or similar event with respect to
the foregoing; and (c) any other security issued as a dividend or other distribution with respect
to, in exchange for, in replacement or redemption of, or in reduction of the liquidation value of,
any of the securities referred to in the preceding clauses; provided, however, that such securities
shall cease to be Registrable Securities when such securities have been sold to or through a broker
or dealer or underwriter in a public distribution or a public securities transaction or when such
securities may be sold without any volume limitations pursuant to Rule 144 as determined by the
counsel to the Company pursuant to a written opinion letter, addressed to the Company’s transfer
agent to such effect as described in Section 2 of this Agreement.



     “Registration Statement” means the registration statements and any additional
registration statements contemplated by Section 2, including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated by reference in such
registration statement.



     “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such Rule.



     “Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such Rule.



     “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same purpose and effect as
such Rule.



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     “SEC Guidance” means (i) any written or oral guidance, comments, requirements or
requests of the Commission staff and (ii) the Securities Act.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Warrants” means the Common Stock purchase warrants issued pursuant to the Purchase
Agreement.



     “Warrant Shares” means the shares of Common Stock issuable upon the exercise of the
Warrants issued or to be issued to the Purchasers or their assignees or designees in connection
with the offering consummated under the Purchase Agreement.



     2. Registration. Not later than the Filing Date, the Company shall prepare and file
with the Commission an Initial Registration Statement for the resale of all or such maximum portion
of the Registrable Securities as permitted by SEC Guidance (provided that the Company shall use
diligent efforts to advocate with the Commission for the registration of all of the Registrable
Securities in accordance with the SEC Guidance, including without limitation, the Manual of
Publicly Available Telephone Interpretations D.29) that are not then registered on an effective
Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-3 (or if such form is not available to the Company on
another form appropriate for such registration in accordance herewith). The Company shall use its
reasonable best efforts to cause the Registration Statement to be declared effective under the
Securities Act not later than the Effectiveness Date (including filing with the Commission a
request for acceleration of effectiveness in accordance with Rule 461 promulgated under the
Securities Act within five (5) Business Days of the date that the Company is notified (orally or in
writing, whichever is earlier) by the Commission that a Registration Statement will not be
“reviewed,” or not be subject to further review) and to keep such Registration Statement
continuously effective under the Securities Act until such date as is the earlier of (x) the date
when all Registrable Securities covered by such Registration Statement have been sold or (y) with
respect to such Holder, such time as all Registrable Securities held by such Holder may be sold
without volume limitations pursuant to Rule 144 as determined by the counsel to the Company
pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (the
“Effectiveness Period”). For purposes of the obligations of the Company under this
Agreement, no Registration Statement shall be considered “effective” with respect to any
Registrable Securities unless such Registration Statement lists the Holders of such Registrable
Securities as “Selling Stockholders” and includes such other information as is required to be
disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant
to such Registration Statement, unless any such Holder is not included as a “Selling Stockholder”
pursuant to Section 3(m). Such Registration Statement also shall cover, to the extent allowable
under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416),
such indeterminate number of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Securities. Notwithstanding the
foregoing or any other provision of this Agreement, if any SEC Guidance sets forth a limitation on
the number of Registrable Securities permitted to be registered on a particular Registration
Statement (and notwithstanding that the Company used diligent efforts to advocate with the
Commission for



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the registration of all or a greater portion of Registrable Securities), unless otherwise
directed in writing by a Holder as to its Registrable Securities or unless otherwise required by
SEC Guidance, the number of Registrable Securities to be registered on such Registration Statement
will first be reduced by Registrable Securities represented by Conversion Shares (on a pro rata
basis based on the total number of unregistered Conversion Shares held by the Holders, to the
extent permitted by SEC Guidance) and next by Registrable Securities represented by Warrant Shares
(applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata
basis based on the total number of unregistered Warrant Shares held by such Holders, to the extent
permitted by SEC Guidance); provided, however, that, prior to any reduction in the number of
Registrable Securities included in a Registration Statement as set forth in this sentence, the
number of shares of Common Stock that are not Registrable Securities and which shall have been
included on such Registration Statement shall be reduced by up to 100%, if such reduction will
permit the registration of additional Registrable Securities.



     3. Registration Procedures.



     In connection with the Company’s registration obligations hereunder, the Company shall:



     (a) Prepare and file with the Commission on or prior to the Filing Date, a Registration
Statement on Form S-3 (or if such form is not available to the Company on another form appropriate
for such registration in accordance herewith) (which shall include a Plan of Distribution
substantially in the form of Exhibit A attached hereto), and cause the Registration
Statement to become effective and remain effective as provided herein; provided, however, that not
less than three (3) Business Days prior to the filing of the Registration Statement or any related
Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Holders or
their counsel, copies of all such documents proposed to be filed, which documents (other than those
incorporated by reference) will be subject to the review of the Holders or their counsel, and (ii)
at the request of any Holder cause its officers and directors, counsel and independent certified
public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of
counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities
Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments
or supplements thereto to which the Holders of a majority of the Registrable Securities or their
counsel shall reasonably object within three (3) Business Days after their receipt thereof. In the
event of any such objection, the Holders shall provide the Company with any requested revisions to
such prospectus or supplement within two (2) Business Days of such objection.



     (b) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the Registration Statement
continuously effective as to the applicable Registrable Securities for the Effectiveness Period and
to the extent any Registrable Securities are not included in such Registration Statement for
reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and
file with the Commission such amendments to the Registration Statement or such additional
Registration Statements as are appropriate in order



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to register for resale under the Securities Act all Registrable Securities; (ii) cause the
related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; (iii) respond as promptly as reasonably practicable to any
comments received from the Commission with respect to the Registration Statement or any amendment
thereto and as promptly as reasonably practicable provide the Holders true and complete copies of
all correspondence from and to the Commission relating to the Registration Statement, but not,
without the prior written consent of the Holders, any comments that would result in the disclosure
to the Holders of material and non-public information concerning the Company; and (iv) comply in
all material respects with the provisions of the Securities Act and the Exchange Act with respect
to the disposition of all Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the Holders thereof set
forth in the Registration Statement as so amended or in such Prospectus as so supplemented.



     (c) Notify Holders of Registrable Securities to be sold as promptly as reasonably practicable
(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will
be a “review” of such Registration Statement and whenever the Commission comments in writing on
such Registration Statement; and (C) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, and after the effectiveness thereof:
(i) of any request by the Commission or any other Federal or state governmental authority for
amendments or supplements to the Registration Statement or Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement covering any or all of the Registrable Securities or the initiation
of any Proceedings for that purpose; (iii) 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 (iv) if the financial statements included in the Registration
Statement become ineligible for inclusion therein or of the occurrence of any event that makes any
statement made in the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires any
revisions to the Registration Statement, Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, 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 the light of the circumstances under which they were
made, not misleading. Without limitation to any remedies to which the Holders may be entitled
under this Agreement, if any of the events described in Section 3(c)(C)(i), 3(c)(C)(ii),
3(c)(C)(iii) or 3(c)(C)(iv) occur, the Company shall use its reasonable best efforts to respond to
and correct the event.



     (d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use reasonable
best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the
Registration Statement or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable time.



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     (e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Registration Statement such information as
the Company reasonably agrees should be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.



     (f) Furnish to each Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and schedules, and all
exhibits to the extent requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with the Commission.



     (g) Promptly deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such
Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders in connection with the offering
and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement
thereto.



     (h) Prior to any public offering of Registrable Securities, use its reasonable best efforts to
register or qualify or cooperate with the selling Holders in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder requests in writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by a Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of process in any jurisdiction where
it is not then so subject or subject the Company to any material tax in any such jurisdiction where
it is not then so subject.



     (i) Cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to a Registration Statement,
which certificates shall be free, to the extent permitted by applicable law and the Purchase
Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any Holder may request at least two (2) Business Days
prior to any sale of Registrable Securities.



     (j) Following the occurrence of any event contemplated by Section 3(c)(C)(iv), as promptly as
possible, prepare a 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, neither the Registration Statement nor such Prospectus will contain an untrue
statement of a material fact or omit to state a material



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fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.



     (k) Cause all Registrable Securities relating to such Registration Statement to be listed on
any United States securities exchange, quotation system, market or over-the-counter bulletin board
on which similar securities issued by the Company are then listed.



     (l) Comply in all material respects with all applicable rules and regulations of the
Commission with respect to the Registration Statement.



     (m) Request each selling Holder to furnish to the Company information regarding such Holder
and the distribution of such Registrable Securities as is required by law or the Commission to be
disclosed in the Registration Statement, and the Company may exclude from such registration the
Registrable Securities of any such Holder who fails to furnish such information within a reasonable
time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended
Registration Statement.



     If the Registration Statement refers to any Holder by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to require (if such reference to
such Holder by name or otherwise is not required by the Securities Act or any similar federal
statute then in force) the deletion of the reference to such Holder in any amendment or supplement
to the Registration Statement filed or prepared subsequent to the time that such reference ceases
to be required.



     Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of any event of the kind described in Section 3(c)(C)(i),
3(c)(C)(ii), 3(c)(C)(iii), 3(c)(C)(iv), or 3(n), such Holder will forthwith discontinue disposition
of such Registrable Securities under the Registration Statement until such Holder’s receipt of the
copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section
3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement.



     (n) If (i) there is material non-public information regarding the Company which the Company’s
Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to
disclose and which the Company is not otherwise required to disclose, or (ii) there is a
significant business opportunity (including, but not limited to, the acquisition or disposition of
assets (other than in the ordinary course of business) or any merger, consolidation, tender offer
or other similar transaction) available to the Company which the Board reasonably determines not to
be in the Company’s best interest to disclose and which the Company would be required to disclose
under the Registration Statement, then the Company may (i) postpone or suspend filing or
effectiveness of a registration statement or (ii) notify the Holders that the Registration
Statement may not be used in connection with any sales of the Company’s securities, in each case,
for a period not to exceed 30 consecutive days, provided that the Company may not postpone or
suspend its



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obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month
period (each, a “Blackout Period”).



     4. Registration Expenses.



     All fees and expenses incident to the performance of or compliance with this Agreement by the
Company shall be borne by the Company whether or not the Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to the Registration
Statement. The fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with each securities exchange, quotation system,
market or over-the-counter bulletin board on which Registrable Securities are required hereunder to
be listed, (B) with respect to filings required to be made with the Commission, and (C) in
compliance with state securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of printing or
photocopying prospectuses), (iii) messenger, telephone and delivery expenses, (iv) Securities Act
liability insurance, if the Company so desires such insurance, and (v) fees and expenses of all
other Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement, including, without limitation, the Company’s independent public
accountants (including, in the case of an underwritten offering, the expenses of any comfort
letters or costs associated with the delivery by independent public accountants of a comfort letter
or comfort letters) and legal counsel. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the Registrable Securities on any securities
exchange as required hereunder. The Company shall reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Holders of at least a majority of the
Registrable Securities to act as counsel for the Holders in connection with the Registration
Statements filed pursuant hereto or any piggyback registrations under Section 7(d); provided, that
the Company’s reimbursement obligation for such reasonable fees and disbursements shall not exceed
$5,000 in the aggregate. Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder shall pay all underwriting discounts and commissions with respect to any
Registrable Securities sold by it.



     5. Indemnification.



     (a) Indemnification by the Company. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the officers, directors, agents,
brokers (including brokers who offer and sell Registrable Securities as principal as a result of a
pledge or any failure to perform under a margin call of Common Stock), investment advisors and
employees of each of them, each Person who controls any such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling Person, to the fullest extent permitted by applicable law, from
and against any and all losses,



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claims, damages, liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material fact contained or incorporated by
reference in the Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or form of prospectus or amendment or
supplement thereto, in the light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that (i) such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, which information was reasonably relied on by the Company for use
therein or to the extent that such information relates to (x) such Holder and was reviewed and
expressly approved in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of prospectus or in any amendment or supplement thereto or (y) such
Holder’s proposed method of distribution of Registrable Securities as set forth in Exhibit
A (or as such Holder otherwise informs the Company in writing); or (ii) in the case of an
occurrence of an event of the type described in Section 3(c)(C)(ii), 3(c)(C)(iii), 3(c)(C)(iv) or
3(n), the use by a Holder of an outdated or defective Prospectus after the delivery to the Holder
of written notice from the Company that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 3(m); provided, however, that the
indemnity agreement contained in this Section 5(a) shall not apply to amounts paid in settlement of
any Losses if such settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an Indemnified Party (as defined in Section
5(c) to this Agreement) and shall survive the transfer of the Registrable Securities by the
Holders.



     (b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents and employees of such controlling Persons,
to the fullest extent permitted by applicable law, from and against all Losses, as incurred,
arising solely out of or based solely upon any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or
supplement thereto, or arising solely out of or based solely upon any omission of a material fact
required to be stated therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent, that (i) such untrue
statement or omission is contained in or omitted from any information so furnished in writing by
such Holder to the Company specifically for inclusion in the Registration Statement or such
Prospectus and that such information was reasonably relied upon by the Company for use in the
Registration Statement, such Prospectus, or in any amendment or supplement thereto, or to the
extent that such information relates to (x) such Holder and was reviewed and expressly approved in
writing by such Holder expressly for use in the Registration Statement, such Prospectus, or such
form of prospectus or in any amendment or supplement thereto or (y) such Holder’s



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proposed method of distribution of Registrable Securities as set forth in Exhibit A
(or as such Holder otherwise informs the Company in writing), (ii) in the case of an occurrence of
an event of the type described in Section 3(c)(C)(ii), 3(c)(C)(iii), 3(c)(C)(iv) or 3(n), the use
by a Holder of an outdated or defective Prospectus after the delivery to the Holder of written
notice from the Company that the Prospectus is outdated or defective and prior to the receipt by
such Holder of the Advice contemplated in Section 3(m) or (iii) such Holder’s failure to comply
with the Prospectus delivery requirements of the Securities Act through no fault of the Company;
provided, however, that the indemnity agreement contained in this Section 5(b) shall not apply to
amounts paid in settlement of any Losses if such settlement is effected without the prior written
consent of the Holder, which consent shall not be unreasonably withheld. Notwithstanding anything
to the contrary contained herein, the Holder shall be liable under this Section 5(b) for only that
amount as does not exceed the net proceeds to such Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement.



     (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party promptly shall notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all reasonable fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent
that it shall be finally determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.



     An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised in writing by counsel that a conflict of
interest is likely to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be
at the reasonable expense of the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent, which consent shall
not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the



11









 







subject matter of such Proceeding and does not impose any monetary or other obligation or
restriction on the Indemnified Party.



     All reasonable fees and expenses of the Indemnified Party (including reasonable fees and
expenses to the extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party,
as incurred, within ten (10) Business Days of written notice thereof to the Indemnifying Party,
which notice shall be delivered no more frequently than on a monthly basis (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined that such Indemnified
Party is not entitled to indemnification hereunder).



     (d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in
such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’
or other reasonable fees or expenses incurred by such party in connection with any Proceeding to
the extent such party would have been indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in accordance with its terms.
Notwithstanding anything to the contrary contained herein, the Holder shall be required to
contribute under this Section 5(d) for only that amount as does not exceed the net proceeds to such
Holder as a result of the sale of Registrable Securities pursuant to such Registration Statement.



     The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.



     The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties. The indemnity and
contribution agreements herein are in addition to and not in diminution or



12









 







limitation of any indemnification provisions under the Purchase Agreement.



     6. Rule 144.



     As long as any Holder owns Notes, Conversion Shares, Warrants or Warrant Shares, the Company
covenants to timely file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date hereof pursuant to
Section 13(a) or 15(d) of the Exchange Act. As long as any Holder owns Notes, Conversion Shares,
Warrants or Warrant Shares, if the Company is not required to file reports pursuant to Section
13(a) or 15(d) of the Exchange Act, it will prepare and furnish to the Holders and make publicly
available in accordance with Rule 144(c)(2) promulgated under the Securities Act annual and
quarterly financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would otherwise be required to
be included in reports required by Section 13(a) or 15(d) of the Exchange Act, as well as any other
information required thereby, in the time period that such filings would have been required to have
been made under the Exchange Act. The Company further covenants that it will take such further
action as any Holder may reasonably request, all to the extent required from time to time to enable
such Person to sell Notes, Conversion Shares, Warrants and Warrant Shares without registration
under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including compliance with the provisions of the Purchase Agreement
relating to the transfer of the Notes, Conversion Shares, Warrants and Warrant Shares. Upon the
request of any Holder, the Company shall deliver to such Holder a written certification of a duly
authorized officer as to whether it has complied with such requirements.



     7. Miscellaneous.



     (a) Remedies. In the event of a breach by the Company or by a Holder, of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.



     (b) No Inconsistent Agreements. Except as otherwise disclosed in the Purchase
Agreement, neither the Company nor any of its subsidiaries is a party to an agreement currently in
effect, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.



     (c) Notice of Effectiveness. Within two (2) Business Days after the Registration
Statement which includes the Registrable Securities is ordered effective by the Commission,



13









 







the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Holders whose Registrable
Securities are included in such Registration Statement) confirmation that the Registration
Statement has been declared effective by the Commission.



     (d) Piggy-Back Registrations. If at any time when there is not an effective
Registration Statement covering all of the Registrable Securities, the Company shall determine to
prepare and file with the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with stock option or other
employee benefit plans, the Company shall send to each Holder of Registrable Securities written
notice of such determination and, if within seven (7) Business Days after receipt of such notice,
any such Holder shall so request in writing (which request shall specify the Registrable Securities
intended to be disposed of by the Holder), the Company will cause the registration under the
Securities Act of all Registrable Securities which the Company has been so requested to register by
the Holder, to the extent required to permit the disposition of the Registrable Securities so to be
registered, provided that if at any time after giving written notice of its intention to register
any securities and prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written notice of such
determination to such Holder and, thereupon, (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay expenses in accordance with Section 4 hereof), and
(ii) in the case of a determination to delay registering, shall be permitted to delay registering
any Registrable Securities being registered pursuant to this Section 7(d) for the same period as
the delay in registering such other securities. The Company shall include in such registration
statement all or any part of such Registrable Securities such Holder requests to be registered. In
the case of an underwritten public offering, if the managing underwriter(s) or underwriter(s)
should reasonably object to the inclusion of the Registrable Securities in such registration
statement, then if the Company after consultation with the managing underwriter should reasonably
determine that the inclusion of such Registrable Securities, would materially adversely affect the
offering contemplated in such registration statement, and based on such determination recommends
inclusion in such registration statement of fewer or none of the Registrable Securities of the
Holders, then (x) the number of Registrable Securities of the Holders included in such registration
statement shall be reduced pro-rata among such Holders (based upon the number of Registrable
Securities requested to be included in the registration), if the Company after consultation with
the underwriter(s) recommends the inclusion of fewer Registrable Securities, or (y) none of the
Registrable Securities of the Holders shall be included in such registration statement, if the
Company after consultation with the underwriter(s) recommends the inclusion of none of such
Registrable Securities; provided, however, that if securities are being offered for the account of
other persons or entities as well as the Company, such reduction shall not represent a greater
fraction of the number of Registrable Securities intended to be offered by the Holders than the
fraction of similar reductions



14









 







imposed on such other persons or entities (other than the Company).



     (e) Consent to Jurisdiction. Each of the Company and the Holders (i) hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New
York City, New York for the purposes of any suit, action or proceeding arising out of or relating
to this Agreement and (ii) hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the
suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Each of the Company and the Holders consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing in this Section 7(e)
shall affect or limit any right to serve process in any other manner permitted by law.



     (f) Amendments and Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and the Holders of at least a majority of the Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of the Registrable Securities
to which such waiver or consent relates; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.



     (g) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earlier of (i) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified for notice prior to 5:00 p.m., New York City
time, on a Business Day, (ii) the next Business Day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile number specified in this Section on a
day that is not a Business Day or later than 5:00 p.m., New York City time, on any date and earlier
than 11:59 p.m., New York City time, on such date, (iii) the Business Day following the date of
mailing, if sent by nationally recognized overnight courier service such as Federal Express or (iv)
actual receipt by the party to whom such notice is required to be given. The addresses for such
communications shall be with respect to each Holder at its address set forth under its name on
Schedule 1 attached hereto, or with respect to the Company, addressed to:


AXS-One Inc.

301 Route 17 North

Rutherford, New Jersey 07070

Attention: Chief Financial Officer

Facsimile No.: (201) 935-5230



or to such other address or addresses or facsimile number or numbers as any such party may





15









 







most recently have designated in writing to the other parties hereto by such notice. Copies of
notices to the Company shall be sent to:



Wiggin and Dana LLP

400 Atlantic Street

Stamford, Connecticut 06901

Attention: Michael Grundei

Facsimile No.: (203) 363-7676



Copies of notices to any Holder shall be sent to the addresses, if any, listed on Schedule
1 attached hereto.




     (h) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns and shall inure to the benefit of
each Holder and its successors and assigns; provided, that the Company may not assign this
Agreement or any of its rights or obligations hereunder without the prior written consent of each
Holder; and provided, further, that each Holder may assign its rights hereunder in the manner and
to the Persons as permitted under the Purchase Agreement.



     (i) Assignment of Registration Rights. The rights of each Holder hereunder, including
the right to have the Company register for resale Registrable Securities in accordance with the
terms of this Agreement, shall be automatically assignable by each Holder to any transferee of such
Holder of all or a portion of the Notes, the Warrants or the Registrable Securities if: (i) the
Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such assignment, (ii) the
Company is, within a reasonable time after such transfer or assignment, furnished with written
notice of (a) the name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned, (iii) following such
transfer or assignment the further disposition of such securities by the transferee or assignees is
restricted under the Securities Act and applicable state securities laws, (iv) at or before the
time the Company receives the written notice contemplated by clause (ii) of this Section 7(i), the
transferee or assignee agrees in writing with the Company to be bound by all of the provisions of
this Agreement, and (v) such transfer shall have been made in accordance with the applicable
requirements of the Purchase Agreement. The rights to assignment shall apply to the Holders (and to
subsequent) successors and assigns.



     The Company may require, as a condition of allowing such assignment in connection with a
transfer of Notes, Warrants or Registrable Securities (i) that the Holder or transferee of all or a
portion of the Notes, the Warrants or the Registrable Securities as the case may be, furnish to the
Company a written opinion of counsel that is reasonably acceptable to the Company to the effect
that such transfer may be made without registration under the Securities Act, (ii) that the Holder
or transferee execute and deliver to the Company an investment letter in form and substance
acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in
Rule 501(a) promulgated under the Securities Act.



16









 





     (j) Counterparts; Facsimile. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that any signature is
delivered by electronic means or facsimile transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature were the original thereof.



     (k) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to principles of conflicts of law thereof.



     (l) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.



     (m) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable in any
respect, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.



     (n) Headings. The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.



     (o) Registrable Securities Held by the Company and its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its Affiliates (other than any Holder or
transferees or successors or assigns thereof if such Holder is deemed to be an Affiliate solely by
reason of its holdings of such Registrable Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.



     (p) Obligations of Purchasers. The Company acknowledges that the obligations of each
Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser under this Agreement. The decision of each Purchaser to enter into to this
Agreement has been made by such Purchaser independently of any other Purchaser. The Company
further acknowledges that nothing contained in this Agreement, and no action taken by any Purchaser
pursuant hereto, shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with



17









 







respect to such obligations or the transactions contemplated hereby. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without limitation, the rights
arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined
as an additional party in any proceeding for such purpose.



     Each Purchaser has been represented by its own separate legal counsel in their review and
negotiation of this Agreement and with respect to the transactions contemplated hereby. The
Company acknowledges that such procedure with respect to this Agreement in no way creates a
presumption that the Purchasers are in any way acting in concert or as a group with respect to this
Agreement or the transactions contemplated hereby or thereby.



[signature page follows]




18









 








     IN WITNESS WHEREOF, the parties hereto have caused this Investor Rights Agreement to be duly
executed by their respective authorized persons as of the date first indicated above.



COMPANY:




AXS-ONE INC.




By: /s/ William P. Lyons          

Name: William P. Lyons

Title: CEO




19









 





PURCHASERS:




Print Exact Name: Aston Assets, S.A




By:  /s/ Alejandro Gonzalez                                   
               

Name: Alejandro Gonzalez

Title: Legal Representative (Power of Attorney)




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




20









 





PURCHASERS:




Print Exact Name: Harold D. Copperman




By: /s/ Harold D. Copperman          

Name:

Title:




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




21









 








PURCHASERS:




Print Exact Name: Jurika Family Trust U/A 1989




By: /s/ William K. Jurika          

Name: William K. Jurika

Title: Trustee




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




22









 








PURCHASERS:




Print Exact Name: Philip L. Rugani




By: /s/ Philip L. Rugani          

Name:

Title:




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




23









 








PURCHASERS:




Print Exact Name: Robert J. Migliorino




By: /s/ Robert J. Migliorino          

Name:

Title:




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




24









 








PURCHASERS:



Print Exact Name: Primafides (Suisse) S.A. as Trustees of Sirius Trust




By: /s/ P. De Salis           /s/ D. Moran                                             

Name: Primafides (Suisse) SA as Trustees of Sirius Trust

Title: Directors




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




25









 








PURCHASERS:




Print Exact Name: William P. Lyons




By: /s/ William P. Lyons          

Name:

Title:




[Omnibus AXS-One Inc. Investor Rights Agreement Signature Page]




26









 








SCHEDULE 1




PURCHASERS




	 	 	 
	Name and Address	 	Copy of Notice to:
	Aston Assets, S.A.

	 	 
	c/o Industrias Panamas Boston
	 	 
	Apartado 0816-04054 Zon 5
	 	 
	Panamá, República de Panamá
	 	 
	Attn: Alejandro Gonzalez
	 	 
	(506) 2-223-5787 (fax)
	 	 
	 
	 	 
	Harold D. Copperman
	 	 
	2804 Tarflower Way
	 	 
	Naples, FL 34105
	 	 
	(239) 659-4473 (fax)
	 	 
	 
	 	 
	Jurika Family Trust U/A 3/17/1989
	 	 
	42 Glen Alpine Road
	 	 
	Piedmont, CA 94611
	 	 
	Attn: William Jurika
	 	 
	(510) 985 1197 (fax)
	 	 
	 
	 	 
	Phillip L. Rugani
	 	 
	459 Old Woods Road
	 	 
	Wyckoff, NJ 07481
	 	 
	(201) 939-6955 (fax)
	 	 
	 
	 	 
	Robert Migliorino
	 	 
	81 Eleven Levels Rd.
	 	 
	Ridgefield, CT 06877
	 	 
	(212) 202-5188 (fax)
	 	 
	 
	 	 
	Sirius Trust
	 	 
	c/o Stonehage SA
	 	 
	Rue du Puits-Godet 12
	 	 
	P.O.Box 763
	 	 
	2002 Neuchatel, Switzerland
	 	 
	Attn: David Moran; P. DeSalis
	 	 
	(41) 32 723 1005 (fax)
	 	 
	 
	 	 
	William P. Lyons
	 	 
	301 Rt. 17 North
	 	 
	Rutherford, NJ 07070
	 	 
	(201) 939-6955 (fax)
	 	 






27









 






EXHIBIT A




PLAN OF DISTRIBUTION




     We are registering the shares of common stock on behalf of the selling security holders. Sales
of shares may be made by selling security holders, including their respective donees, transferees,
pledgees or other successors-in-interest directly to purchasers or to or through underwriters,
broker-dealers or through agents. Sales may be made from time to time on the _________, any
other exchange or market upon which our shares may trade in the future, in the over-the-counter
market or otherwise, at market prices prevailing at the time of sale, at prices related to market
prices, or at negotiated or fixed prices. The shares may be sold by one or more of, or a
combination of, the following:




	-	 	a block trade in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction (including crosses in
which the same broker acts as agent for both sides of the
transaction);
	 
	-	 	purchases by a broker-dealer as principal and resale by such
broker-dealer, including resales for its account, pursuant to this
prospectus;
	 
	-	 	ordinary brokerage transactions and transactions in which the broker
solicits purchases;
	 
	-	 	through options, swaps or derivatives;
	 
	-	 	in privately negotiated transactions;
	 
	-	 	in making short sales or in transactions to cover short sales; and
	 
	-	 	put or call option transactions relating to the shares.





     The selling security holders may effect these transactions by selling shares directly to
purchasers or to or through broker-dealers, which may act as agents or principals. These
broker-dealers may receive compensation in the form of discounts, concessions or commissions from
the selling security holders and/or the purchasers of shares for whom such broker-dealers may act
as agents or to whom they sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). The selling security holders have
advised us that they have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities.



     The selling security holders may enter into hedging transactions with broker-dealers or other
financial institutions. In connection with those transactions, the broker-dealers or other
financial institutions may engage in short sales of the shares or of securities convertible into or
exchangeable for the shares in the course of hedging positions they assume with the selling
security holders. The selling security holders may also enter into options or other



28









 







transactions with broker-dealers or other financial institutions which require the delivery of
shares offered by this prospectus to those broker-dealers or other financial institutions. The
broker-dealer or other financial institution may then resell the shares pursuant to this prospectus
(as amended or supplemented, if required by applicable law, to reflect those transactions).



     The selling security holders and any broker-dealers that act in connection with the sale of
shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act
of 1933, and any commissions received by broker-dealers or any profit on the resale of the shares
sold by them while acting as principals may be deemed to be underwriting discounts or commissions
under the Securities Act. The selling security holders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares against liabilities,
including liabilities arising under the Securities Act. We have agreed to indemnify each of the
selling security holders and each selling security holder has agreed, severally and not jointly, to
indemnify us against some liabilities in connection with the offering of the shares, including
liabilities arising under the Securities Act.



     The selling security holders will be subject to the prospectus delivery requirements of the
Securities Act. We have informed the selling security holders that the anti-manipulative provisions
of Regulation M promulgated under the Securities Exchange Act of 1934 may apply to their sales in
the market.



     Selling security holders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria
and conform to the requirements of Rule 144.



     Upon being notified by a selling security holder that a material arrangement has been entered
into with a broker-dealer for the sale of shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, we will file a
supplement to this prospectus, if required pursuant to Rule 424(b) under the Securities Act,
disclosing:




	-	 	the name of each such selling security holder and of the participating
broker-dealer(s);
	 
	-	 	the number of shares involved;
	 
	-	 	the initial price at which the shares were sold;
	 
	-	 	the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
	 
	-	 	that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
	 
	-	 	other facts material to the transactions.




29









 











     In addition, if required under applicable law or the rules or regulations of the Commission,
we will file a supplement to this prospectus when a selling security holder notifies us that a
donee or pledgee intends to sell more than 500 shares of common stock.



     We are paying all expenses and fees customarily paid by the issuer in connection with the
registration of the shares. The selling security holders will bear all brokerage or underwriting
discounts or commissions paid to broker-dealers in connection with the sale of the shares.




30