**EXHIBIT 4.5**

 

**AMENDED AND RESTATED INVESTOR RIGHTSAGREEMENT**

 

This AMENDED AND RESTATEDINVESTOR RIGHTS AGREEMENT (this “Agreement”), is entered into as of March 31,2003, by and among Centiv, Inc., a Delaware corporation (the “Company”), andthe investors identified on Exhibit 1 (together with any permitted transfereesor assigns or any additional investors who become party to this Agreementpursuant to Section 11.2 hereof, the “Investors”).

 

**Background**

 

A.  The Company and certain of the Investors entered into an InvestorRights Agreement, dated as of March 28, 2002 (the “Previous Rights Agreement”),whereby the Company provided certain registration rights for the Company’sCommon Stock, par value $.001 per share (the “Common Stock”) under theSecurities Act of 1933, as amended (such act, together with the rules andregulations thereunder, or any similar successor statute, the “Securities Act”)and applicable state securities laws and provided certain other rights toinduce the Investors party thereto to purchase (i) shares of the Company’sSeries A Convertible Preferred, par value $.001 per share (the “Series AConvertible Preferred”), and (ii) warrants to purchase additional shares of theSeries A Convertible Preferred (“the Convertible Preferred Warrants”) pursuantto a Securities Purchase Agreement, dated as of March 28, 2002.  Pursuant to the terms thereof and of theSecurities Purchase Agreement (defined below) the Convertible PreferredWarrants are being converted into warrants to purchase Common Stock.  On December 31, 2002, the Securities andExchange Commission declared effective the initial registration statement filedby the Company under the Previous Rights Agreement covering 4,597,837 shares of Common Stock (the“2002 Registration Statement”).

 

B.  The Company and certain of the Investors have entered into aSecurities Purchase Agreement dated the same date as this Agreement (the“Securities Purchase Agreement”) whereby the Company has agreed to issue and sellto the Investors (i) shares of the Company’s Series B Convertible Preferred,par value $.001 per share, (together with the Series A Convertible Preferred,the “Preferred Stock”), and (ii) warrants to purchase additional shares of theCommon Stock (together with the Convertible Preferred Warrants, the“Warrants”).  The shares of PreferredStock are convertible into shares of the Common Stock.

 

C.  To induce certain of the Investors to enter into the SecuritiesPurchase Agreement, the Company has agreed to provide certain registration andrights for the Company’s Common Stock under the Securities Act and applicablestate securities laws.

 

D.  The Company and the Investors who were parties to the PreviousRights Agreement desire to amend and restate the Previous Rights Agreement tomake certain changes as provided herein and to add as parties thereto theInvestors who are parties to the Securities Purchase Agreement.

 

NOW, THEREFORE, the Company and the Investorshereby agree as follows:

 

1.               DEFINITIONS.

 

As used in this Agreement,the following terms shall have the following meanings:

 

1.1  “Beneficially Owned” with respect to an Investor or groupof Investors includes all Registrable Securities then held by such Investor orgroup of Investors plus all Registrable Securities acquirable by such Investoror group of Investors upon conversion of the Preferred Stock or exercise of theWarrants.

 

1.2  “business day” means any day other than a Saturday orSunday or a day on which banking institutions in the State of California areauthorized or obligated by law, regulation or executive order to close.

 

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1.3  “Closing Date” shall have the meaning set forth in Section2.2 of the Securities Purchase Agreement.

 

1.4   “Conversion Shares” shall mean the shares of Common Stockissuable upon conversion of the Preferred Stock.

 

1.5  “Pro Rata Percentage” shall mean, with respect to anyInvestor as of a particular time, a percentage computed by dividing (a) thenumber of Registrable Securities Beneficially Owned by such Investor, by (b)the number of shares of Common Stock and Preferred Stock (on an as-convertedbasis) issued and outstanding plus the number of Warrant Common Shares issuableupon exercise of the Warrants outstanding.

 

1.6 “register,” “registered,”and “registration” refer to a registration effected by preparing andfiling a Registration Statement or Statements in compliance with the SecuritiesAct, and the declaration or ordering of effectiveness of such RegistrationStatement by the SEC.

 

1.7  “Registrable Securities” means (i) the Conversion Shares,(ii) the Warrant Common Shares, (iii) any shares of Common Stock issued to anInvestor in lieu of any cash compensation payment pursuant to Section 2.3 ofthis Agreement and (iv) any shares of capital stock issued or issuable, fromtime to time (with any adjustments), as a distribution on or in exchange for orotherwise with respect to any of the foregoing.

 

1.8 “RegistrationStatement” means one or more registration statements of the Company underthe Securities Act, including the 2002 Registration Statement.

 

1.9 “SEC” means theUnited States Securities and Exchange Commission.

 

1.10  “Warrant Common Shares” shall meanshares of Common Stock issuable directly upon exercise of or otherwise pursuantto the Warrants.

 

2.               REGISTRATION.

 

2.1  Mandatory Registration Statement Filing.  The Company shall file with the SEC, on orprior to the date which is thirty (30) calendar days after the Closing Date(the “Filing Deadline”) a Registration Statement on Form S-3 pursuant to Rule415 under the Securities Act (such rule or any successor thereto, “Rule 415”)covering the resale by the Investors of up to 8,700,000 shares of Common Stock(which includes all Conversion Shares and Warrant Common Shares), whichRegistration Statement, to the extent allowable under the Securities Act shallstate that such Registration Statement also covers such indeterminate number ofadditional shares of Common Stock as may become issuable upon conversion of thePreferred Stock or exercise of the Warrants to prevent dilution resulting fromstock splits, stock dividends or similar transactions (the “InitialRegistration Statement”).  The InitialRegistration Statement shall be provided to (and subject to the review by) theInvestors and their counsel at least five (5) business days prior to its filingor other submission.

 

2.2  Underwritten Offering. The Investors may offer and sellthe Registrable Securities pursuant to a Registration Statement filed inaccordance with Section 2.1 in an underwritten offering.  In any such underwritten offering, theInvestors who Beneficially Own a majority in interest of the RegistrableSecurities subject to such underwritten offering, shall have the right toselect one legal counsel to represent the Investors and an investment banker orbankers and manager or managers to administer the offering, which investmentbanker or bankers or manager or managers shall be reasonably satisfactory tothe Company.  In the event that anyInvestors elect not to participate in such underwritten offering, theRegistration Statement covering all of the Registrable Securities shall containappropriate plans of distribution reasonably satisfactory to the Investorsparticipating in such underwritten offering and the Investors electing not toparticipate in such underwritten offering (including, without limitation, theability of nonparticipating Investors to sell from time to time and at any timeduring the effectiveness of such Registration Statement).

 

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2.3  Registration Deadline; Payments by the Company.

 

(a) The Company shall use itsbest efforts to cause the Initial Registration to become effective as soon aspracticable, but in no event later than the ninetieth (90th) day after theClosing Date (the “Registration Deadline”). If (A) the Initial Registration Statement is not filed with the SEC bythe Filing Deadline, (B) the Initial Registration Statement is not declaredeffective by the SEC on or before the Registration Deadline, or (C) after theInitial Registration Statement has been declared effective by the SEC, sales ofthe Registrable Securities required to be included therein cannot be madepursuant to the Registration Statement because such Registration Statementceases to be effective under the Securities Act or the Company informs theInvestors under Section 3.5 or otherwise that they should not use theRegistration Statement for sales of Registrable Securities (each a“Registration Suspension”), then the Company will, subject to Section 2.3(c)below, make payments to the Investors in such amounts and at such times asshall be determined pursuant to this Section 2.3 as compensation for thedamages to the Investors by reason of any such delay in or reduction of theirability to sell the Registrable Securities (which remedy shall not be exclusiveof any other remedies available to obtain specific performance by the Companyof its obligations hereunder, but shall be exclusive of any actions for damagesrelating to the failure by the Company after exercising its best efforts toobtain or maintain the effectiveness of any particular registration statement).

 

(b)  In the event the compensation provisions of Section 2.3(a) aretriggered, the Company shall pay to each Investor an amount equal to (A) theamount paid by such Investor for the Preferred Stock and the Warrants purchasedby such Investor (or if such Investor is not the original purchaser of suchsecurities, the amount paid by the original purchaser thereof), multiplied by(B) one percent, multiplied by (C) the number of days after the Filing Deadlineand prior to the date the Initial Registration Statement is filed with the SEC,plus the number of days after the Registration Deadline and prior to the datethe Registration Statement is declared effective by the SEC plus, in the eventof a Registration Suspension, except with respect to any Blackout Period (asdefined below), the number of additional days that sales of any RegistrableSecurities required to be included in a Registration Statement cannot be madepursuant to a Registration Statement after such Registration Statement has beendeclared effective, divided by (D) thirty.

 

(c) Notwithstanding theforegoing, a Registration Suspension during a Blackout Period (as definedbelow) shall not give rise to an obligation to make a payment under thisSection 2.3. For purposes of this Agreement, “Blackout Period” shall mean suchday or days, not to exceed an aggregate of twenty-five (25) business daysduring any period of twelve (12) consecutive months, with respect to which theBoard of Directors of the Company determines in good faith (A) that anamendment or supplement to a Registration Statement or prospectus containedtherein is necessary in light of subsequent events, in order to correct amaterial misstatement made therein or to include information the absence ofwhich would render the Registration Statement or such prospectus materiallymisleading and (B) that the filing of such amendment or supplement would resultin the disclosure of information which the Company has a bona fide businesspurpose for preserving as confidential; provided that the Company shall  be entitled to impose no more than four (4)Blackout Periods during any period of twelve (12) consecutive months and theCompany shall notify the Investors immediately upon imposition of any BlackoutPeriod.

 

(d)  Amounts payable under this Section 2.3 shall at the option of theCompany either be paid (i) in cash, or (b) in shares of Common Stock, valuingthe Common Stock at a price equal to the closing price of the shares of CommonStock on the Nasdaq Stock Market (“Nasdaq”) on the trading day immediatelyprior to the date such shares are issued (or such other method of valuation asagreed by the Company and such Investor) , and any shares of Common Stock soissued shall be Registrable Securities (provided that the failure of suchshares to be registered at the time of payment shall not preclude the Companyfrom using such shares for payment of its obligations under this Section 2.3).  Payments under this Section 2.3 shall bemade within five (5) days after the end of each period that gives rise to suchobligation, provided that, if any such period extends for more than thirty (30)days, interim payments shall be made for such thirty (30) day period.  If such payment is not made within theapplicable period, the Investor thereafter shall be entitled to additionalcompensation on the unpaid amount at a rate equal of two percent (2%) per monthuntil such amount is paid in full to the Investor. If the Company decides tomake payment partially

 

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in cash and partially in stock, the Companywill pay the Investors such cash amounts and share amounts pro rata based uponthe total amounts payable to each Investor as a percentage of the total amountspayable to all Investors.

 

2.4   Eligibility for Form S-3.  The Company represents and warrants that it is eligible toregister the resale of Registrable Securities on a registration statement onForm S-3 under Rule 415 under the Securities Act.  To the Company’s knowledge, after reasonable investigation, thereexist no facts or circumstances (including without limitation any requiredapprovals or waivers or any circumstances that may delay or prevent theobtaining of accountant’s consents) that would prohibit or delay thepreparation and filing of a registration statement on Form S-3 with respect tothe Registrable Securities.  The Companyshall file all reports required to be filed by the Company with the SEC in atimely manner so as to maintain its eligibility for the use of Form S-3.

 

2.5  Piggy-back Rights.

 

(a)  If at any time the Companyproposes to register any of its stock or other securities under the SecuritiesAct (including for this purpose a registration effected by the Company forshareholders other than the Investors, but excluding a registration on Form S-8relating solely to the sale of securities to participants in a Company stock orstock option plan or to other compensatory arrangements to the extentincludible on Form S-8, or a registration on Form S-4), the Company shall, atsuch time, promptly give each Investor written notice of suchregistration.  Upon the written requestof any Investor given within ten (10) days after receipt by such Investor ofsuch notice by the Company in accordance with Section 13.2, the Company shall,subject to Section 2.5(b), use its best efforts to cause to be registered underthe Securities Act all of the Registrable Securities that such Investor hasrequested to be registered.  The Companyshall have no obligation under this Section 2.5 to make any offering of itssecurities, or to complete an offering of its securities that it proposes tomake, and shall incur no liability to any Investor for its failure to do so.  No registration effected under this Section2.5 shall relieve the Company of any of its obligations to effect registrationunder Section 2.1.

 

(b)  In connection with anyoffering involving an underwriting of shares being issued by the Company, theCompany shall not be required under Section 2.5 to include any Investor’ssecurities in such underwriting unless such Investor accepts the terms of theunderwriting as agreed upon between the Company and the underwriters selectedby the Company, and then only in such quantity as will not, in the opinion ofthe underwriters, jeopardize the success of the offering by the Company;provided, however, that no Investor participating in such underwriting shall berequired to make any representations, warranties or indemnities in their capacityas selling stockholders except as they relate to such Investor’s ownership ofshares and authority to enter into the underwriting agreement and suchInvestor’s intended method of distribution. If the total amount of securities, including Registrable Securities,requested by shareholders to be included in any offering referred to in Section2.5 exceeds the amount of securities sold other than by the Company that theunderwriters reasonably believe compatible with the success of the offering,then the Company shall be required to include in the offering only that numberof such securities, including Registrable Securities, which the underwritersbelieve will not jeopardize the success of the offering.  The securities so included shall beapportioned pro rata among the selling shareholders.

 

3.               OBLIGATIONS OF THE COMPANY.

 

In connection with theregistration of the Registrable Securities, the Company shall have thefollowing obligations:

 

3.1  Preparation, Filing and Effectiveness of RegistrationStatement. The Company shall prepare and file with the SEC on or before theFiling Deadline the Initial Registration Statement and shall use its bestefforts to cause such Registration Statement to become effective as soon aspracticable after such filing (but in no event later than the RegistrationDeadline).  The Company shall keep theInitial Registration Statement and the 2002 Registration Statement effectivepursuant to Rule 415 at all times until the earliest of (a) six years from thedate of this Agreement, (b) the date on which all of the Registrable Securitiescovered by such registration statement (in the reasonable opinion of counsel tothe Investors or the

 

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Company) may be immediately sold to the publicin a single transaction pursuant to Rule 144(k) under the Securities Act orotherwise without registration or restriction, including Registrable Securitiesissuable upon exercise of the Warrants (the “Registration Period”), (c) twoyears after all of the Warrants have been either redeemed or exercised, or (d)two years after all of the outstanding shares of Preferred Stock have beenconverted into Common Stock; provided, that in the case of a termination of theeffectiveness of the Registration Statement under clauses (b), (c) or (d), the Company shall provide notice to theInvestors ninety (90) days prior to the date on which the RegistrationStatement shall cease to be effective . Each Registration Statement filed under this Agreement or the PreviousRights Agreement (including any amendments or supplements thereto andprospectuses contained therein and all documents incorporated by referencetherein) (i) shall comply in all material respects with the requirements of theSecurities Act and (ii) shall not contain any untrue statement of a materialfact or omit to state a material fact required to be stated therein, ornecessary to make the statements therein not misleading. The financialstatements of the Company included in any such Registration Statement orincorporated by reference therein will comply as to form in all materialrespects with applicable accounting requirements and the published rules andregulations of the SEC applicable with respect thereto.  Such financial statements will be preparedin accordance with U.S. generally accepted accounting principles, consistentlyapplied, during the periods involved (except (i) as may be otherwise indicatedin such financial statements or the notes thereto, or (ii) in the case ofunaudited interim statements, to the extent they may not include footnotes ormay be condensed on summary statements and fairly present in all materialrespects the consolidated financial position of the Company and itsconsolidated subsidiaries as of the dates thereof and the consolidated resultsof their operations and cash flows for the periods then ended (subject, in thecase of unaudited statements, to normal year-end adjustments)).

 

3.2  Amendments and Supplements. The Company shall prepare andfile with the SEC such amendments (including post-effective amendments) andsupplements to the 2002 Registration Statement and the Initial RegistrationStatement and the prospectus used in connection with the 2002 RegistrationStatement and the Initial Registration Statement as may be necessary to keepsuch Registration Statements effective at all times during the RegistrationPeriod, and, during such period, comply with the provisions of the SecuritiesAct with respect to the disposition of all Registrable Securities of theCompany covered by the 2002 Registration Statement and the Intial RegistrationStatement until such time as all of such Registrable Securities have beendisposed of in accordance with the intended methods of disposition by theseller or sellers thereof as set forth in the Initial Registration Statement.If for any reason the number of shares registered under the 2002 RegistrationStatement and the Initial Registration Statement filed pursuant to thisAgreement is, for any three (3) consecutive trading days (the last of suchthree (3) trading days being the “Registration Trigger Date”), insufficient tocover one hundred percent (100%) of the Registrable Securities (includingRegistrable Securities issuable upon exercise of the Warrants or uponconversion of the Preferred Stock), the Company shall amend the 2002Registration Statement and the Initial Registration Statement, or file a newRegistration Statement (on the shortest form available therefor, if applicable), or both, so as to cover onehundred percent (100%) of the Registrable Securities (including RegistrableSecurities issuable upon exercise of the Warrants or upon conversion of thePreferred Stock) as of the Registration Trigger Date, in each case, as soon aspracticable, but in any event within ten (10) days after the RegistrationTrigger Date.  The Company shall use itsbest efforts to cause such amendment and/or new Registration Statement tobecome effective as soon as practicable following the filing thereof.  Any failure by the Company to effectuate theprovisions of this Section shall result in the accrual of compensatory damagesas set forth in Section 2.3.

 

3.3  Furnishing Materials to Investors.  The Company shall furnish to each Investorwhose Registrable Securities are included in a Registration Statement and itslegal counsel promptly after the same is prepared and publicly distributed,filed with the SEC, or received by the Company, one copy of the RegistrationStatement and any amendment thereto, each preliminary prospectus and prospectusand each amendment or supplement thereto. In addition, in the case of the Initial Registration Statement, theCompany shall promptly furnish to the Investors (i) all correspondence receivedfrom the SEC relating to that Registration Statement and, within at least two daysprior to the date of submission, a copy of each letter written by or on behalfof the Company to the SEC, and the Company shall cooperate in making allreasonable modifications requested by the Investors to any portion of anyletter or other correspondence from the Company to the SEC that relates to theInvestors or transactions contemplated by agreements

 

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between the Company and any investors, (ii) onthe date of effectiveness of the Registration Statement or any amendmentthereto, a notice stating that the Registration Statement or amendment has beendeclared effective, and (iii) such number of copies of a prospectus, includinga preliminary prospectus, and all amendments and supplements thereto and suchother documents as an Investor may reasonably request in order to facilitatethe disposition of the Registrable Securities owned by such Investor.

 

3.4  Underwritten Offering. In the event the Investors whoBeneficially Own a majority in interest of the Registrable Securities beingoffered in an offering select underwriters for the offering, the Company shallenter into and perform its obligations under an underwriting agreement, inusual and customary form, including, without limitation, customary indemnificationand contribution obligations, with the underwriters of such offering.

 

3.5  Notification of Events. As promptly as practicable afterbecoming aware of such event, the Company shall notify each Investor bytelephone and facsimile of the happening of any event, of which the Company hasknowledge, as a result of which the prospectus included in the RegistrationStatement, as then in effect, includes an untrue statement of a material factor omits to state a material fact required to be stated therein or necessary tomake the statements therein not misleading, and, except during a BlackoutPeriod, use its best efforts promptly to prepare a supplement or amendment tothe Registration Statement to correct such untrue statement or omission anddeliver such number of copies of such supplement or amendment to each Investoras such Investor may reasonably request.

 

3.6  Stop Orders or Other Suspensions of Effectiveness. TheCompany shall use its best efforts to prevent the issuance of any stop order orother suspension of effectiveness of a Registration Statement, and, if such anorder is issued, to obtain the withdrawal of such order at the earliestpracticable date (including in each case by amending or supplementing suchRegistration Statement) and to notify each Investor who holds RegistrableSecurities being sold (or, in the event of an underwritten offering, themanaging underwriters) of the issuance of such order and the resolution thereof(and if such Registration Statement is supplemented or amended, deliver suchnumber of copies of such supplement or amendment to each Investor as suchInvestor may reasonably request).

 

3.7  Review by Counsel. The Company shall provide to a singlecounsel designated by the Investors a copy for review of any RegistrationStatement and all amendments and supplements thereto at least two (2) businessdays prior to their filing with the SEC, except for the Initial RegistrationStatement which shall be provided at least five (5) business days in advancepursuant to Section 2.1 hereof.

 

3.8  Earnings Statement. The Company shall make generallyavailable to its security holders as soon as practical, but not later thanninety (90) days after the close of the period covered thereby, an earningsstatement (in form complying with the provisions of Rule 158 under theSecurities Act) covering a twelve-month period beginning not later than thefirst day of the Company’s fiscal quarter next following the effective date ofthe Registration Statement.

 

3.9 Opinion and ComfortLetters. At the request of any Investor whose Registrable Securities areincluded in a Registration Statement relating to an underwritten offering, theCompany shall furnish, on the date of effectiveness of the RegistrationStatement (i) an opinion, dated as of such date, from counsel representing theCompany addressed to the Investors and underwriters in form, scope andsubstance as is customarily given in an underwritten public offering and (ii) aletter, dated such date, from the Company’s independent certified publicaccountants in form and substance as is customarily given by independentcertified public accountants to underwriters in an underwritten publicoffering, addressed to the Investors and the underwriters.

 

3.10  Due Diligence Inspection. The Companyshall make available for inspection by (i) any Investor whose RegistrableSecurities are included in a Registration Statement, (ii) any underwriterparticipating in any disposition pursuant to a Registration Statement, (iii)one firm of attorneys and one firm of accountants or other agents retained bythe Investors, and (iv) one firm of attorneys retained by the underwriters(collectively, the “Inspectors”) all pertinent financial and other records, andpertinent corporate documents and properties of the Company, as shall bereasonably deemed necessary by each

 

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Inspector to enable each Inspector to exerciseits due diligence responsibility, and cause the Company’s officers, directorsand employees to supply all information which any Inspector may reasonablyrequest for purposes of such due diligence, provided, however, that each suchInspector shall, if reasonably requested to do so by the Company, be requiredto execute a confidentiality agreement in form and substance reasonablyacceptable to such Inspector and the Company.

 

3.11  Confidentiality. The Company shallhold in confidence and not make any disclosure of information concerning anInvestor provided to the Company unless (i) disclosure of such information isnecessary to comply with federal or state securities laws, (ii) the disclosureof such information is necessary to avoid or correct a misstatement or omissionin any Registration Statement, (iii) the release of such information is orderedpursuant to a subpoena or other order from a court or governmental body ofcompetent jurisdiction, (iv) such information has been made generally availableto the public other than by disclosure in violation of this or any otheragreement, or (v) such Investor consents to the form and content of any suchdisclosure.  The Company agrees that itshall, upon learning that disclosure of such information concerning an Investoris sought in or by a court or governmental body of competent jurisdiction orthrough other means, give prompt notice to such Investor prior to making suchdisclosure, and allow the Investor, at its expense, to undertake appropriateaction to prevent disclosure of, or to obtain a protective order for, suchinformation.

 

3.12  Listing. The Company shall use itscommercially reasonable efforts to promptly either (i) secure the designationand quotation, of all the Registrable Securities covered by the RegistrationStatement on Nasdaq, and, without limiting the generality of the foregoing, toarrange for or maintain at least two market makers to register with theNational Association of Securities Dealers, Inc. as such with respect to suchRegistrable Securities; or (ii) cause all the Registrable Securities covered bythe Registration Statement to be listed on the New York Stock Exchange,American Stock Exchange or another national securities exchange and on eachadditional national securities exchange on which securities of the same classor series issued by the Company are then listed, if any, if the listing of suchRegistrable Securities is then permitted under the rules of such exchange

 

3.13  Transfer Agent and Registrar. TheCompany shall provide a transfer agent and registrar, which may be a singleentity, for the Registrable Securities not later than the effective date of theRegistration Statement.

 

3.14  Delivery of Certificates. The Companyshall cooperate with the Investors who hold Registrable Securities beingoffered and the managing underwriter or underwriters, if any, to facilitate thetimely preparation and delivery of certificates (not bearing any restrictivelegends) representing Registrable Securities to be offered pursuant to theRegistration Statement and enable such certificates to be in such denominationsor amounts, as the case may be, as the managing underwriter or underwriters, ifany, or the Investors may reasonably request and registered in such names asthe managing underwriter or underwriters, if any, or the Investors may request,and, within three (3) business days after a Registration Statement whichincludes Registrable Securities is ordered effective by the SEC, the Companyshall deliver, and shall cause legal counsel selected by the Company todeliver, to the transfer agent for the Registrable Securities (with copies tothe Investors whose Registrable Securities are included in such RegistrationStatement) an opinion of such counsel in the form attached hereto as Exhibit 2.

 

3.15  Plan of Distribution.  Following effectiveness of the 2002Registration Statement or the Initial Registration Statement, at the request ofInvestors who Beneficially Own a majority-in-interest of the RegistrableSecurities, the Company shall prepare and file with the SEC such amendments(including post-effective amendments) or supplements to a RegistrationStatement and the prospectus used in connection with the Registration Statementas may be necessary in order to change the plan of distribution set forth insuch Registration Statement; provided, however, that in the event that theCompany files an amendment at the request of the Investors pursuant to thisparagraph and the SEC reviews such amendment, then the Company shall not beresponsible for any compensation under Section 2.3 from any resultingRegistration Suspension arising solely from said review so long as the Companyuses its best efforts to have the Registration Statement declared effective assoon as practicable following such Registration Suspension.

 

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3.16  Compliance with Laws. The Companyshall comply with all applicable laws related to a Registration Statement andoffering and sale of securities and all applicable rules and regulations ofgovernmental authorities in connection therewith (including without limitationthe Securities Act and the Securities Exchange Act of 1934, as amended, and therules and regulations promulgated by the SEC thereunder (the “Exchange Act”)).

 

3.17  Other Actions.  The Company shall take all such otheractions as any Investor or the underwriters, if any, reasonably request inorder to expedite or facilitate the disposition of such Registrable Securities.

 

3.18  Limitations on Grant of OtherRegistration Rights.  Except as setforth in the Disclosure Schedule to the Securities Purchase Agreement, theCompany does not have in place any agreements that would require it to includesecurities in the Initial Registration Statement other than the RegistrableSecurities under this Agreement and the Common Stock issuable under the optionreferenced in the last sentence of this Section 3.18. From and after the dateof this Agreement, the Company shall not, and shall not agree to, allow theholders of any securities of the Company to include any of their securities inthe Initial Registration Statement under Section 2.1 hereof or any amendment orsupplement thereto under Section 3.2 hereof without the consent of the holderswho Beneficially Own a majority in interest of the Registrable Securities,except for (a) Registrable Securities held by additional investors who become partiesto this Agreement pursuant to Section 11.2, and (b) Common Stock registeredunder the 2002 Registration Statement that does not fall within the definitionof “Registrable Securities”.

 

3.19  Blue Sky Laws.  The Company shall not be obligated to registeror qualify the re-sale of the Registrable Securities under the blue sky laws ofthe various states, unless specifically requested by the Investors. Ifrequested by the Investors, the Company shall from time to time take suchactions as the Company shall reasonably determine are necessary to qualify theRegistrable Securities for, or obtain exemption for the Registrable Securitiesfor, resale by the Investors under applicable securities or “blue sky” laws ofthe states of the United States, and shall provide evidence of any such actionso taken to the Investors; provided, however, that the Company shall not berequired to qualify as a foreign corporation or file a general consent toservice of process in any such jurisdiction.

 

4.               OBLIGATIONS OF THE INVESTORS.

 

In connection with theregistration of the Registrable Securities, the Investors shall have thefollowing obligations:

 

4.1  Furnishing Information to the Company. Each Investor shalluse its best efforts to promptly provide the Company with any informationreasonably requested by the Company relating to such Investor, the plan ofdistribution or otherwise within the knowledge of such Investor in connectionwith responding to comments received by the Company from the SEC or inconnection with the preparation, filing or effectiveness of any registrationstatement hereunder.  It shall be acondition precedent to the obligations of the Company to complete theregistration pursuant to this Agreement with respect to the RegistrableSecurities of a particular Investor that such Investor shall furnish to theCompany such information regarding itself, the Registrable Securities held byit and the intended method of disposition of the Registrable Securities held byit as shall be reasonably required to effect the registration of suchRegistrable Securities and shall execute such documents in connection with suchregistration as the Company may reasonably request.  At least ten (10) business days prior to the first anticipatedfiling date of a Registration Statement, the Company shall notify each Investorof any information the Company requires from each such Investor.

 

4.2  Cooperation. Each Investor shall cooperate with theCompany as reasonably requested by the Company in connection with thepreparation and filing of the Registration Statement hereunder, unless suchInvestor has notified the Company in writing of such Investor’s election toexclude all of such Investor’s Registrable Securities from the RegistrationStatement.

 

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4.3  Underwritten Offerings. In the event Investors whoBeneficially Own a majority in interest of the Registrable Securities beingoffered determine to engage the services of an underwriter, each Investoragrees to enter into and perform such Investor’s obligations under anunderwriting agreement, in usual and customary form, including, withoutlimitation, customary indemnification and contribution obligations, with theunderwriter(s) of such offering and the Company and take such other actions asare reasonably required in order to expedite or facilitate the disposition ofthe Registrable Securities, unless such Investor has notified the Company inwriting of such Investor’s election not to participate in such underwrittendistribution.  No Investor mayparticipate in any underwritten distribution hereunder unless such Investor (i)agrees to sell such Investor’s Registrable Securities on the basis provided inany underwriting arrangements in usual and customary form entered into by theCompany, (ii) completes and executes all questionnaires, powers of attorney,indemnities, underwriting agreements and other documents reasonably requiredunder the terms of such underwriting arrangements, and (iii) agrees to pay itspro rata share of all underwriting discounts and commissions. Notwithstandinganything in this Section 4.3 to the contrary, this Section 4.3 is not intendedto limit an Investor’s rights under Section 2.1 or 3.4 of this Agreement.

 

4.4   Receipt of Notification from the Company. In the eventthat the Company informs the Investors that the Company must file an amendmentor supplement to the Registration Statement to correct an untrue statement oromission pursuant to Section 3.5 of this Agreement, the Investors will not sellany Registrable Securities until the Company notifies the Investors that theCompany has filed such amendment or supplement.  Investors shall be free to sell their Registrable Securitiesunder a Registration Statement that has been declared effective without priornotification to the Company, unless they are in receipt of such a notice fromthe Company and the untrue statement or omission has not yet been addressed bythe Company.

 

5.               EXPENSES OF REGISTRATION.

 

All reasonable expensesincurred by the Company in connection with registrations, filings orqualifications pursuant to Sections 2 and 3 above, including, withoutlimitation, all registration, listing and qualifications fees, printers andaccounting fees, the fees and disbursements of counsel for the Company, shallbe borne by the Company.  Fees anddisbursements of one counsel selected by the Investors in connection withregistrations, filings or qualifications pursuant to Sections 2 and 3 aboveshall be paid by the Company.

 

6.               INDEMNIFICATION.

 

In the event any RegistrableSecurities are included in a Registration Statement under this Agreement:

 

6.1  Indemnification by the Company. To the extent permitted bylaw, the Company will indemnify, hold harmless and defend (i) each Investor,and (ii) the directors, officers, partners, members, employees and agents ofsuch Investor and each person who controls any Investor within the meaning ofSection 15 of the Securities Act or Section 20 of the Exchange Act, if any(each, an “Indemnified Person”), against any joint or several losses, claims,damages, liabilities or expenses (collectively, together with actions,proceedings or inquiries by any regulatory or self-regulatory organization,whether commenced or threatened, in respect thereof, “Claims”) to which any of themmay become subject insofar as such Claims arise out of or are based upon: (i)any untrue statement or alleged untrue statement of a material fact in aRegistration Statement or the omission or alleged omission to state therein amaterial fact required to be stated or necessary to make the statements thereinnot misleading, (ii) any untrue statement or alleged untrue statement of amaterial fact contained in any preliminary prospectus if used prior to theeffective date of such Registration Statement, or contained in the finalprospectus (as amended or supplemented, if the Company files any amendmentthereof or supplement thereto with the SEC) or the omission or alleged omissionto state therein any material fact necessary to make the statements made therein,in light of the circumstances under which the statements therein were made, notmisleading, or (iii) any violation or alleged violation by the Company of theSecurities Act, the Exchange Act, any other law, including, without limitation,any state securities law, or any rule or regulation thereunder relating to theoffer or sale of the Registrable Securities (the matters in the foregoingclauses (i) through (iii) being, collectively,

 

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“Violations”).  Subject to the restrictions set forth in Section 6.3 with respectto the number of legal counsel, the Company shall reimburse the Investors andeach other Indemnified Person, promptly as such expenses are incurred and aredue and payable, for any reasonable legal fees or other reasonable expensesincurred by them in connection with investigating or defending any suchClaim.  Notwithstanding anything to thecontrary contained herein, the indemnification agreement contained in thisSection 6.1: (i) shall not apply to a Claim arising out of or based upon aViolation which occurs in reliance upon and in conformity with informationfurnished in writing to the Company by such Indemnified Person expressly foruse in the Registration Statement or any such amendment thereof or supplementthereto; (ii) shall not apply to amounts paid in settlement of any Claim ifsuch settlement is effected without the prior written consent of the Company,which consent shall not be unreasonably withheld; and (iii) with respect to anypreliminary prospectus, shall not inure to the benefit of any IndemnifiedPerson if the untrue statement or omission of material fact contained in thepreliminary prospectus was corrected on a timely basis in the prospectus, asthen amended or supplemented, if such corrected prospectus was timely madeavailable by the Company pursuant to Section 3.3 hereof, and the IndemnifiedPerson was promptly advised in writing not to use the incorrect prospectusprior to the use giving rise to a Violation and such Indemnified Person,notwithstanding such advice, used it. Such indemnity shall remain in full forceand effect regardless of any investigation made by or on behalf of theIndemnified Person and shall survive the transfer of the Registrable Securitiesby the Investors pursuant to Section 11.1.

 

6.2  Indemnification by an Investor.  In connection with any Registration Statement in which anInvestor is participating, each such Investor agrees severally and not jointlyto indemnify, hold harmless and defend, to the same extent and in the samemanner set forth in Section 6.1, the Company, each of its directors, each ofits officers who signs the Registration Statement, its employees, agents andeach person, if any, who controls the Company within the meaning of Section 15of the Securities Act or Section 20 of the Exchange Act, and any otherstockholder selling securities pursuant to the Registration Statement or any ofits directors or officers or any person who controls such stockholder orunderwriter within the meaning of the Securities Act or the Exchange Act(collectively and together with an Indemnified Person, an “Indemnified Party”),against any Claim to which any of them may become subject, under the SecuritiesAct, the Exchange Act or otherwise, insofar as such Claim arises out of or isbased 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 writteninformation furnished to the Company by such Investor expressly for use inconnection with such Registration Statement; and subject to Section 6.3 suchInvestor will reimburse any legal fees and expenses (promptly as such expensesare incurred and are due and payable) reasonably incurred by them in connectionwith investigating or defending any such Claim; provided, however, that theindemnity agreement contained in this Section 6.2 shall not apply to amountspaid in settlement of any Claim if such settlement is effected without theprior written consent of such Investor, which consent shall not be unreasonablywithheld; provided, further, however, that the Investor shall be liable underthis Agreement (including this Section 6.2 and Section 7) for only that amountas does not exceed the net proceeds actually received by such Investor as aresult of the sale of Registrable Securities pursuant to such RegistrationStatement.  Such indemnity shall remainin full force and effect regardless of any investigation made by or on behalfof such Indemnified Party and shall survive the transfer of the RegistrableSecurities by the Investors pursuant to Section 11.1.

 

6.3  Indemnification Procedure. Promptly after receipt by anIndemnified Person or Indemnified Party under this Section 6 of notice of thecommencement of any action (including any governmental action), suchIndemnified Person or Indemnified Party shall, if a Claim in respect thereof isto be made against any indemnifying party under this Section 6, deliver to theindemnifying party a written notice of the commencement thereof, and theindemnifying party shall have the right to participate in, and, to the extentthe indemnifying party so desires, jointly with any other indemnifying partysimilarly noticed, to assume control of the defense thereof with counselmutually satisfactory to the indemnifying party and the Indemnified Person orthe Indemnified Party, as the case may be; provided, however, that suchindemnifying party shall not be entitled to assume such defense and anIndemnified Person or Indemnified Party shall have the right to retain its owncounsel with the fees and expenses to be paid by the indemnifying party, if, inthe reasonable opinion of counsel retained by the indemnifying party, therepresentation by such counsel of the Indemnified Person or Indemnified Party andthe indemnifying party would be inappropriate due to actual or potentialconflicts of interest between such Indemnified Person or

 

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Indemnified Party and any other partyrepresented by such counsel in such proceeding or the actual or potentialdefendants in, or targets of, any such action include both the IndemnifiedPerson or the Indemnified Party and the indemnifying party and any suchIndemnified Person or Indemnified Party reasonably determines that there may belegal defenses available to such Indemnified Person or Indemnified Party whichare in conflict with those available to such indemnifying party.  The indemnifying party shall pay for onlyone separate legal counsel for the Indemnified Persons or the IndemnifiedParties, as applicable, and such legal counsel shall be selected by Investorswho Beneficially Own a majority-in-interest of the Registrable Securitiesincluded in the Registration Statement to which the Claim relates, if theInvestors are entitled to indemnification hereunder, or by the Company, if theCompany is entitled to indemnification hereunder, as applicable.  The failure to deliver written notice to theindemnifying party within a reasonable time of the commencement of any such actionshall not relieve such indemnifying party of any liability to the IndemnifiedPerson or Indemnified Party under this Section 6, except to the extent that theindemnifying party is actually prejudiced in its ability to defend such action.  The indemnification required by this Section6 shall be made by periodic payments of the amount thereof during the course ofthe investigation or defense, as such expense, loss, damage or liability isincurred and is due and payable.

 

7.               CONTRIBUTION.

 

To the extent anyindemnification by an indemnifying party is prohibited or limited by law, theindemnifying party agrees to make the maximum contribution with respect to anyamounts for which it would otherwise be liable under Section 6 to the fullestextent permitted by law; provided, however, that (i) no contribution shall bemade under circumstances where the maker would not have been liable forindemnification under the fault standards set forth in Section 6, (ii) noperson guilty of fraudulent misrepresentation (within the meaning of Section11(f) of the Securities Act) shall be entitled to contribution from any sellerof Registrable Securities who was not guilty of such fraudulentmisrepresentation, and (iii) contribution (together with any indemnification orother obligations under this Agreement) by any seller of Registrable Securitiesshall be limited in amount to the net amount of proceeds received by suchseller from the sale of such Registrable Securities.

 

8.               PARTICPATION RIGHTS.

 

8.1  Participation Rights. The Company agrees that each Investor shall have a right of firstrefusal to purchase its Pro Rata Percentage of the total amount of any issuanceof any shares of capital stock of any kind of the Company, whether now orhereafter authorized, and rights, options, or warrants to purchase said capitalstock, and securities of any type whatsoever that are, or by their terms maybecome, convertible into said capital stock that the Company, from time totime, may propose to sell and issue (the “Participation Securities”), provided,however, that the term Participation Securities shall not apply to (1) theissuance of securities upon exercise or conversion of the Company’s options,warrants or other convertible securities outstanding as of the date hereof thatare disclosed in Section 4.3 of the Disclosure Schedule to the SecuritiesPurchase Agreement, (2) the grant of additional options or warrants, or theissuance of additional securities, under any duly authorized Company stockoption, stock purchase or restricted stock plan for the benefit of theCompany’s employees, consultants or directors, or (3) upon conversion of thePreferred Stock or exercise of the Warrants.

 

8.2  Rights Notice.  Ifthe Company proposes to issue Participation Securities, it will give eachInvestor written notice (the “Rights Notice”) of the Company’s intention to doso, describing the Participation Securities, the price, and the general termsupon which the Company proposes to issue them. Each such Investor will have 14 days from the date of delivery of theRights Notice to agree to purchase up to its Pro Rata Percentage of the totalamount of such Participation Securities for the price and upon the generalterms specified in the Rights Notice by giving written notice to the Companysetting forth the quantity of Participation Securities to be purchased.

 

8.3  Closing of Sale of Participation Securities.  The Company will have 120 days after thedate of delivery of the Rights Notice to sell the Participation Securities thatwere not purchased by the Investors, at a price and upon general terms no morefavorable to the purchasers thereof than the price and general terms

 

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specified in the Rights Notice.  If the Company does not sell the ParticipationSecurities within said 120-day period as provided in the preceding sentence,the Company will not thereafter issue or sell any of such ParticipationSecurities without complying with the provisions of Section 8.2.

 

9.               BOARD MATTERS

 

9.1  Board Nominee.  For so long as the Investors (or theirpermitted assigns) collectively Beneficially Own at least 1,500,000 RegistrableSecurities (as adjusted for stock splits, reverse stock splits and the like),the Company shall use its best efforts to have four nominees of holders of amajority of the Registrable Securities Beneficially Owned by the Investorselected to the Board (the “Investor Directors”); provided, however, that solong as the holders of Preferred Stock are entitled to nominate and elect directorspursuant to the provisions of the Certificate of Designations, the nominationand election of the Investor Directors shall be governed by the Certificate ofDesignations and not this Section 9.1.

 

9.2 Indemnification andInsurance.   The Company shall enterinto an indemnification agreement with the Board members designated by theInvestors in accordance with Section 9.1 on terms no less favorable than theindemnification agreement that any other member of the Board has from theCompany. At all times that designees of the Investors are serving on the Boardof Directors and for a period of three years thereafter, the Company shallmaintain directors and officers insurance coverage with a minimum coveragelimit of $2.5 million and a deductible of no more than $250,000.   The policy shall be an “occurrence” policy,and not a “claims made” policy.  TheCompany represents that such policy is in place as of the date of execution of thisAgreement.

 

9.3 Board Observer.  For so long as the Investors (or their permittedassigns) collectively Beneficially Own at least 1,500,000 RegistrableSecurities (as adjusted for stock splits, reverse stock splits and the like),the holders of a majority of the shares of Registrable Securities BeneficiallyOwned by the Investors shall have the right to appoint a board observer whoshall have the right to attend and observe all meetings of the Board ofDirectors and committees thereof.  Ifthe Company proposes to take any action by written consent in lieu of a meetingof its Board of Directors or any committee thereof, the Company shall givewritten notice thereof to the Board observer prior to the effective date ofsuch consent describing in reasonable detail the nature and the substance ofsuch action.

 

10.         REPORTS UNDER THE EXCHANGEACT.

 

With a view to makingavailable to the Investors the benefits of Rule 144 promulgated under theSecurities Act or any other similar rule or regulation of the SEC that may atany time permit the Investors to sell securities of the Company to the publicwithout registration (“Rule 144”), the Company agrees, during the RegistrationPeriod, to:

 

(a) file with the SEC in atimely manner and make and keep available all reports and other documentsrequired of the Company under the Securities Act and the Exchange Act so longas the Company remains subject to such requirements (it being understood thatnothing herein shall limit the Company’s obligations under Section 5.3 of theSecurities Purchase Agreement or similar obligations of the Company to Investorswho become party to this Agreement pursuant to Section 11.2) and the filing andavailability of such reports and other documents is required for the applicableprovisions of Rule 144; and

 

(b)  furnish to each Investor so long as such Investor owns RegistrableSecurities, promptly upon request, (i) a written statement by the Company thatit has complied with the reporting requirements of Rule 144, the Securities Actand the Exchange Act, (ii) a copy of the most recent annual or quarterly reportof the Company and such other reports and documents so filed by the Company,and (iii) such other information as may be reasonably requested to permit theInvestors to sell such securities pursuant to Rule 144 without registration.

 

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11.         ASSIGNMENT OF RIGHTS;ADDITIONAL INVESTORS.

 

11.1  Assignment.  The rights of the Investors hereunder, including the right tohave the Company register Registrable Securities pursuant to this Agreement,shall only be assignable by an Investor to a transferee or assignee ofRegistrable Securities, Preferred Stock or Warrants if: (i) the Company isfurnished with written notice of (a) the name and address of such transferee orassignee and (b) the securities with respect to which such registration rightsare being transferred or assigned, (ii) the transferee or assignee agrees inwriting with the Company to be bound by all of the provisions contained herein,and (iii) such transfer shall have been made in accordance with the applicablerequirements of the Securities Purchase Agreement (or, if applicable, otherpurchase agreement entered into by an Investor who becomes party to thisAgreement pursuant to Section 11.2).  Inaddition, and notwithstanding anything to the contrary contained in thisAgreement, the Securities Purchase Agreement (or other purchase agreemententered into by any Investors who become party to this Agreement pursuant toSection 11.2) or the Warrants, the Registrable Securities, Preferred Stock andWarrants may be pledged, and all rights of the Investors under this Agreementor any other agreement or document related to the transaction contemplatedhereby may be assigned, without further consent of the Company, to a bona fidepledgee in connection with an Investor’s margin or brokerage accounts.

 

11.2  Additional Investors.  If after the date hereof, the Company sellsadditional shares of Preferred Stock as permitted under Section 5.9 of theSecurities Purchase Agreement, the Company may allow the purchasers thereof tobecome parties to this Agreement by (a) obtaining an executed writteninstrument from the purchasers thereof in which they agree to be bound by theterms and conditions of this Agreement as a party to this Agreement, and (b)providing the existing Investors written notice of the addition of such newparties and the number of Registrable Securities Beneficially Owned by such newInvestors..  Such purchasers shall thereafter be deemed “Investors”hereunder and parties to this Agreement.

 

12.         AMENDMENT OF RIGHTS.

 

Provisions of this Agreementmay be amended and the observance thereof may be waived (either generally or ina particular instance and either retroactively or prospectively), only withwritten consent of the Company, and the Investors who Beneficially Own fiftypercent (50%) of the Registrable Securities Beneficially Owned by all Investors(or their permitted assigns).  Anyamendment or waiver effected in accordance with this Section 12 shall bebinding upon each Investor and the Company.

 

13.         MISCELLANEOUS.

 

13.1  Headings. Theheadings in this Agreement are for convenience of reference only and shall notlimit or otherwise affect the meaning hereof.

 

13.2  Notice. Any notices required orpermitted to be given under the terms of this Agreement shall be sent bycertified or registered mail (return receipt requested) or delivered personallyor by courier or by confirmed telecopy, and shall be effective five (5) daysafter being placed in the mail, if mailed, one (1) business day after beingdeposited with a nationally recognized overnight delivery service, orimmediately if delivered personally, by same-day courier or by confirmedtelecopy, (such confirmation being conclusive proof of receipt or delivery) ineach case addressed to a party.  Theaddresses for such communications shall be:

 

If to the Company:

 

Centiv,Inc.

998Forest Edge Drive

VernonHills, IL 60061

TelephoneNo.:  847-876-8300

FacsimileNo.:  847-955-1269

Attention:  President

 

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With a copy to:

 

GardnerCarton & Douglas, LLC

191North Wacker Drive, Suite 3700

Chicago,IL  60606

TelephoneNo.:  312-569-1142

FacsimileNo.:  312-569-3142

Attention:  Stephen Tsoris

 

If to an Investor, to the address of suchInvestor set forth on Exhibit 1 to this Agreement or such other address as isprovided by the Investor to the Company in writing pursuant to this Section13.2, with a copy to:

 

RichardFriedman, Esq.

9705Eagle Rising Cove

Austin,TX 78730

TelephoneNo.:   (512) 338-0145

TelecopyNo.:    (512) 338-9131

 

13.3  Failure to Exercise Rights or Remedies.Failure of any party to exercise any right or remedy under this Agreement orotherwise, or delay by a party in exercising such right or remedy, shall notoperate as a waiver thereof.

 

13.4   Governing Law; Jurisdiction. ThisAgreement shall be governed by and construed in accordance with the laws of theState of California applicable to contracts made and to be performed in theState of California.  Each partyirrevocably consents to the non-exclusive jurisdiction of the United Statesfederal courts and state courts located in San Francisco, California in anysuit or proceeding based on or arising under this Agreement.  Each party irrevocably waives the defense ofan inconvenient forum to the maintenance of such suit or proceeding in suchcourts.  Each party further agrees thatservice of process upon it mailed by first class mail to the address set forthin Section 13.2 shall be deemed in every respect effective service of processupon it in any such suit or proceeding. Nothing herein shall affect any party’s right to serve process in anyother manner permitted by law.  Eachparty agrees that a final non-appealable judgment in any such suit orproceeding shall be conclusive and may be enforced in other jurisdictions bysuit on such judgment or in any other lawful manner.

 

13.5  Entire Agreement.  This Agreement, the Securities PurchaseAgreement or other purchase agreement entered into by any Investors who becomeparty to this Agreement pursuant to Section 11.2 (including all schedules andexhibits thereto),  and the Warrantsconstitute the entire agreement among the parties hereto with respect to thesubject matter hereof and thereof. There are no restrictions, promises,warranties or undertakings, other than those set forth or referred to hereinand therein.  This Agreement, theSecurities Purchase Agreement (or other purchase agreement entered into by anyInvestors who become party to this Agreement pursuant to Section 11.2) and theWarrants supersede all prior agreements and understandings among the partieshereto and thereto with respect to the subject matter hereof and thereof.

 

13.6.  Successors and Assigns. Subject tothe requirements of Section 11.1 hereof, this Agreement shall inure to the benefitof and be binding upon the successors and assigns of each of the partieshereto. The Company shall not assign this Agreement or any rights orobligations hereunder without the prior written consent of the  Investors, except in connection with amerger, consolidation or sale of all or substantially all of the Company’sassets in which the surviving or successor entity in such transaction (a)assumes the Company’s obligations hereunder, and (b) is a publicly tradedCompany whose common stock is listed and trades on Nasdaq, the New York StockExchange or the American Stock Exchange.

 

13.7  Counterparts. This Agreement may beexecuted in two or more counterparts, each of which shall be deemed an originalbut all of which shall constitute one and the same agreement.  This Agreement, once executed by a party,may be delivered to the other party hereto by facsimile transmission of a copyof this Agreement bearing the signature of the party so delivering thisAgreement.

 

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13.8  Other Actions.  Each party shall do and perform, or cause tobe done and performed, all such further acts and things, and shall execute anddeliver all such other agreements, certificates, instruments and documents, asthe other party may reasonably request in order to carry out the intent andaccomplish the purposes of this Agreement and the consummation of thetransactions contemplated hereby.

 

13.9 Determinations.  All consents, approvals and otherdeterminations to be made by the Investors pursuant to this Agreement shall bemade by the Investors who Beneficially Own fifty percent (50%) of theRegistrable Securities Beneficially Owned by all Investors (or their permittedassigns).

 

13.10  Previous RightsAgreement.  Effective upon the executionof this Agreement by the Company and holders of 66-2/3% of the RegistrableSecurities Beneficially Owned by all Investors (as defined and calculated underthe Previous Rights Agreement), the Previous Rights Agreement is amended andrestated by this Agreement, and all of the Investor parties to that agreementshall have the rights of an Investor under this Agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Amended and RestatedInvestor Rights Agreement to be duly executed as of the date written in thefirst paragraph of this Agreement.

 

 
|   | COMPANY:     |
|--------|--------------|
|   |         |
|   | CENTIV, INC. |
|   |         |
|   | By:          | /s/ Thomas M. Mason |   |
|   |         |
|   | Title:       | Chief Financial Officer |   |
|        |              |  |  |  |  |

 

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CENTIV,INC.

AMENDEDAND RESTATED

INVESTORRIGHTS AGREEMENT

INVESTORSIGNATURE PAGE

 

 
|   |   |   |                        |   |
|--------|--------|--------|-----------------------------|--------|
|   |   |   | (PRINT NAME OF PURCHASER)   |
|   |   |   |                        |
|   |   |   |                        |   |
|   |   |   | (SIGNATURE)                 |
|   |   |   |                        |
|   |   |   |                        |   |
|   |   |   | (PRINTED NAME OF SIGNATORY) |
|   |   |   |                        |
|   |   |   |                        |   |
|   |   |   | (TITLE OF SIGNATORY)        |

 

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EXHIBIT1

to

Amendedand Restated

InvestorRights Agreement

 

[list name, address and security holdings ofall parties with registration rights, including Series A investors who are notparticipating in the B]

 

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EXHIBIT2

to

Amendedand Restated

InvestorRights Agreement

 

[Date]

 

[Name and address of transfer agent]

 

Ladies and Gentlemen:

 

We have acted as counsel to Centiv, Inc., aDelaware corporation (the “Company”), in connection with the RegistrationStatement on Form S-3 (the “Registration Statement”) filed with the Securitiesand Exchange Commission (the “Commission”) on or about                  , 2003, for the purpose of registering under theSecurities Act of 1933, as amended, up to               shares of its Common Stock, $.001 par value (the “Shares”) for resale bycertain selling stockholders.

 

It is our opinion that the RegistrationStatement on Form S-3 (File No. 333-                          )naming [names of Investors] as selling stockholders of the Shares was declaredeffective by the Securities and Exchange Commission on                 ,2003.

 

Our opinion expressed in this letter is basedsolely upon a letter from the Commission date                ,2003 confirming that the registration was declared effective and telephonecommunications between                       ,an attorney of this office, and                       ,a member of the Commission staff on                          ,2003, confirming that no stop order has been issued as of the date of suchcommunication.

 

This opinion is rendered to you in connectionwith the request to remove the legends from the Shares and is solely for yourbenefit.  This opinion may not be reliedupon by you for any other purpose, or relied upon by any other person, firm,corporation or other entity for any purpose without our prior consent.  We disclaim any obligation to advise you ofany change of law that occurs, or any facts of which we may become aware, afterthe date of this opinion.

 

Verytruly yours,

 

 

cc: [Names of Investor]

 

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