WARRANT MANUAL









Exhibit 10.46




 




SILICON VALLEY BANK




 




REGISTRATION RIGHTS

AGREEMENT




 




THIS REGISTRATION RIGHTS AGREEMENT is entered into as

of December 31, 2001 by and between SILICON VALLEY BANK (“Purchaser”) and ZAMBA

CORPORATION (the “Company”).




 




RECITALS




 




A.            Concurrently

with the execution of this Agreement, the Purchaser is purchasing from the

Company a Warrant to Purchase Stock (the “Warrant”) pursuant to which Purchaser

has the right to acquire from the Company the Shares (as defined in the

Warrant).  The Warrant is referred to as

the “12-2001 Target Date Warrant” in that certain Amendment to Loan Documents

dated as of December 31, 2001 between Purchaser and Company.




 




B.            By

this Agreement, the Purchaser and the Company desire to set forth the

registration rights of the Shares all as provided herein.




 




NOW, THEREFORE, in consideration of the mutual

promises, covenants and conditions hereinafter set forth, the parties hereto

mutually agree as follows:




 




1.             Registration

Rights.  The Company covenants and

agrees as follows:




 




1.1           Definitions.  For purposes of this Section 1:




 




(a)           The

term “register,” “registered,” and “registration” refer to a registration

effected by preparing and filing a Registration Statement or similar document

in compliance with the Securities Act of 1933, as amended (the “Securities

Act”), and the declaration or ordering of effectiveness of such Registration

Statement or document.




 




(b)           The

term “Registrable Securities” means (i) the Shares, and (ii) any Common

Stock of the Company issued as (or issuable upon the conversion or exercise of

any warrant, right or other security which is issued as) a dividend or other

distribution with respect to, or in exchange for or in replacement of, any

stock referred to in (i).




 




(c)           The

terms “Holder” or “Holders” means the Purchaser or qualifying transferees under

Section 1.9 hereof who hold Registrable Securities.




 




(d)           The

term “SEC” means the Securities and Exchange Commission.




 




(e)           The

term “Registration Statement” means a registration statement filed by the

Company with the SEC in compliance with the Securities Act and the rules and




 




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regulations promulgated thereunder for a public offering and sale of

its Common Stock (other than a registration statement on a Limited Purpose

Form).  As used herein, “Limited Purpose

Form” means Form S-8 relating solely to employee stock option or purchase

plans, or Form S-4 relating solely to an SEC Rule 145 transaction, or any

other form (but excluding Forms S-1, S-2, S-3 or S-18, or their successor

forms) or any successor to such forms, which does not include substantially the

same information as would be required to be included in a Registration

Statement covering the sale of Registrable Securities.




 




1.2           Company Registration.




 




(a)           Registration.  If at any time or from time to time, the

Company shall determine to register any of its securities, for its own account

or the account of any of its shareholders, other than a registration on a

Limited Purpose Form, the Company will:




 




(i)            promptly

give to each Holder written notice thereof (which shall include a list of the

jurisdictions in which the Company intends to attempt to qualify such

securities under the applicable blue sky or other state securities laws); and




 




(ii)           include

in such registration (and compliance), and in any underwriting involved

therein, all the Registrable Securities specified in a written request or

requests, made within 30 days after receipt of such written notice from the

Company, by any Holder or Holders, except as set forth in Section 1.2(b) below.




 




(b)           Underwriting.  If the registration of which the Company

gives notice is for a registered public offering involving an underwriting, the

Company shall so advise the Holders as a part of the written notice given pursuant

to Section 1.2(a)(i).  In such event the

right of any Holder to registration pursuant to this Section 1.2 shall be

conditioned upon such Holder’s participation in such underwriting and the

inclusion of such Holder’s Registrable Securities in the underwriting to the

extent provided herein.  All Holders

proposing to distribute their securities through such underwriting shall

(together with the Company and the other shareholders distributing their

securities through such underwriting) enter into an underwriting agreement in

customary form with the underwriter or underwriters selected for such

underwriting by the Company. Notwithstanding any other provision of this

Section 1.2, if the underwriter advises the Company that marketing factors

require a limitation of the number of securities underwritten (including

Registrable Securities), then the Company shall so advise all holders

(including the Holders) of Registrable Securities that would otherwise be so

underwritten, and the number of shares that may be included in the underwriting

shall be allocated to the holders (including the Holders) of such Registrable

Securities on a pro rata basis based on the number of Registrable Securities

held by all such holders (including the Holders).




 




1.3           Expenses

of Registration.  All expenses

incurred in connection with any registration, qualification or compliance

pursuant to this Section 1 including without limitation, all registration,

filing and qualification fees, printing expenses, fees and disbursements of

counsel for the Company and expenses of any special audits incidental to or

required by such registration, shall be borne by the Company except the Company

shall not be required to pay underwriters’




 




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fees, discounts or commissions relating to Registrable Securities.  All expenses of any registered offering not

otherwise borne by the Company shall be borne pro rata among the Holders

participating in the offering and the Company.




 




1.4           Registration

Procedures.  In the case of each

registration, qualification or compliance effected by the Company pursuant to

this Registration Rights Agreement, the Company will keep each Holder

participating therein advised in writing as to the initiation of each

registration, qualification and compliance and as to the completion

thereof.  At its expense (except as

otherwise provided in Section 1.3), the Company will:




 




(a)           (i)

in the case of a registration under Section 1.2, prepare and file with the SEC

a Registration Statement with respect to such Registrable Securities and use

its best efforts to cause such Registration Statement to become effective, and,

upon the request of the Holders of a majority of the Registrable Securities

registered thereunder, keep such Registration Statement effective for up to 120

days.; and (ii) in the case of a registration under Section 1.8, take the

actions specified in such Section.




 




(b)           Prepare

and file with the SEC such amendments and supplements to such Registration

Statement and the prospectus used in connection with such Registration

Statement as may be necessary to comply with the provisions of the Securities

Act with respect to the disposition of all securities covered by such

Registration Statement.




 




(c)           Furnish

to the Holders such numbers of copies of a prospectus, including a preliminary

prospectus, in conformity with the requirements of the Securities Act, and such

other documents as they may reasonably request in order to facilitate the

disposition of Registrable Securities owned by them.




 




(d)           Use

its best efforts to register and qualify the securities covered by such

Registration Statement under such other securities or Blue Sky laws of such

jurisdictions as shall be reasonably requested by the Holders, provided that

the Company shall not be required in connection therewith or as a condition

thereto to qualify to do business or to file a general consent to service of

process in any such states or jurisdictions.




 




(e)           In

the event of any underwritten public offering, enter into and perform its

obligations under an underwriting agreement, in usual and customary form, with

the managing underwriter of such offering. 

Each Holder participating in such underwriting shall also enter into and

perform its obligations under such an agreement.




 




(f)            Notify

each Holder of Registrable Securities covered by such Registration Statement at

any time when a prospectus relating thereto is required to be delivered under

the Securities Act or the happening of any event as a result of which the

prospectus included in such Registration Statement, as then in effect, includes

an untrue statement of a material fact or omits to state a material fact

required to be stated therein or necessary to make the statements therein not

misleading in the light of the circumstances then existing.




 




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1.5           Indemnification.




 




(a)           The

Company will indemnify each Holder of Registrable Securities and each of its

officers, directors and partners, and each person controlling such Holder, with

respect to which such registration, qualification or compliance has been

effected pursuant to this Rights Agreement, and each underwriter, if any, and

each person who controls any underwriter of the Registrable Securities held by

or issuable to such Holder, against all claims, losses, expenses, damages and

liabilities (or actions in respect thereto) arising out of or based on any

untrue statement (or alleged untrue statement) of a material fact contained in

any prospectus, offering circular or other document (including any related

Registration Statement, notification or the like) incident to any such

registration, qualification or compliance, or based on any omission (or alleged

omission) to state therein a material fact required to be stated therein or

necessary to make the statement therein not misleading, or any violation or

alleged violation by the Company of the Securities Act, the Securities Exchange

Act of 1934, as amended, (“Exchange Act”) or any state securities law

applicable to the Company or any rule or regulation promulgated under the

Securities Act, the Exchange Act or any such state law and relating to action

or inaction required of the Company in connection with any such registration,

qualification of compliance, and will reimburse each such Holder, each of its

officers, directors and partners, and each person controlling such Holder, each

such underwriter and each person who controls any such underwriter, within a

reasonable amount of time after incurred for any reasonable legal and any other

expenses incurred in connection with investigating, defending or settling any

such claim, loss, damage, liability or action; provided, however, that the

indemnity agreement contained in this Section 1.5(a) shall not apply to

amounts paid in settlement of any such claim, loss, damage, liability, or

action if such settlement is effected without the consent of the Company (which

consent shall not be unreasonably withheld); and provided further, that the

Company will not be liable in any such case to the extent that any such claim,

loss, damage or liability arises out of or is based on any untrue statement or

omission based upon written information furnished to the Company by an

instrument duly executed by such Holder or underwriter specifically for use

therein.




 




(b)           Each

Holder will, if Registrable Securities held by or issuable to such Holder are

included in the securities as to which such registration, qualification or

compliance is being effected, indemnify the Company, each of its directors and

officers, each underwriter, if any, of the Company’s securities covered by such

a Registration Statement, each person who controls the Company within the

meaning of the Securities Act, and each other such Holder, each of its

officers, directors and partners and each person controlling such Holder,

against all claims, losses, expenses, damages and liabilities (or actions in

respect thereof) arising out of or based on any untrue statement (or alleged

untrue statement) of a material fact contained in any such Registration

Statement, prospectus, offering circular or other document, or any omission (or

alleged omission) to state therein a material fact required to be stated

therein or necessary to make the statements therein not misleading, and will

reimburse the Company, such Holders, such directors, officers, partners,

persons or underwriters for any reasonable legal or any other expenses incurred

in connection with investigating, defending or settling any such claim, loss,

damage, liability or action, in each case to the extent, but only to the

extent, that such untrue statement (or alleged untrue statement) or omission

(or alleged omission) is made in such




 




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Registration Statement, prospectus, offering circular or other document

in reliance upon and in conformity with written information furnished to the

Company by an instrument duly executed by such Holder specifically for use

therein; provided, however, that the indemnity agreement contained in this

Section 1.5(b) shall not apply to amounts paid in settlement of any such claim,

loss, damage, liability or action if such settlement is effected without the

consent of the Holder, (which consent shall not be unreasonably withheld); and

provided further, that the total amount for which any Holder shall be liable

under this Section 1.5(b) shall not in any event exceed the aggregate proceeds

received by such Holder from the sale of Registrable Securities held by such

Holder in such registration.




 




(c)           Each

party entitled to indemnification under this Section 1.5 (the “Indemnified

Party”) shall give notice to the party required to provide indemnification (the

“Indemnifying Party”) promptly after such Indemnified Party has actual

knowledge of any claim as to which indemnity may be sought, and shall permit

the Indemnifying Party to assume the defense of any such claim or any

litigation resulting therefrom; provided that counsel for the Indemnifying

Party, who shall conduct the defense of such claim or litigation, shall be

approved by the Indemnified Party (whose approval shall not be unreasonably

withheld), and the Indemnified Party may participate in such defense at such

party’s expense; and provided further, that the failure of any Indemnified

Party to give notice as provided herein shall not relieve the Indemnifying

Party of its obligations hereunder, unless such failure resulted in prejudice

to the Indemnifying Party; and provided further, that an Indemnified Party

(together with all other Indemnified Parties which may be represented without

conflict by one counsel) shall have the right to retain one separate counsel,

with the fees and expenses to be paid by the Indemnifying Party, if

representation of such Indemnified Party by the counsel retained by the

Indemnifying Party would be inappropriate due to actual or potential differing

interests between such Indemnified Party and any other party represented by

such counsel in such proceeding.  No

Indemnifying Party, in the defense of any such claim or litigation, shall,

except with the consent of each Indemnified Party, consent to entry of any

judgment or enter into any settlement which does not include as an

unconditional term thereof the giving by the claimant or plaintiff to such

Indemnified Party of a release from all liability in respect to such claim or

litigation.




 




1.6           Information

by Holder.  Any Holder or Holders of

Registrable Securities included in any registration shall promptly furnish to

the Company such information regarding such Holder or Holders and the

distribution proposed by such Holder or Holders as the Company may request in

writing and as shall be required in connection with any registration,

qualification or compliance referred to herein.




 




1.7           Rule

144 Reporting.  With a view to

making available to Holders the benefits of certain rules and regulations of

the SEC which may permit the sale of the Registrable Securities to the public

without registration, the Company agrees at all times to:




 




(a)           make

and keep public information available, as those terms are understood and

defined in SEC Rule 144;




 




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(b)           file

with the SEC in a timely manner all reports and other documents required of the

Company under the Securities Act and the Exchange Act; and




 




(c)           so

long as a Holder owns any Registrable Securities, to furnish to such Holder

forthwith upon request a written statement by the Company as to its compliance

with the reporting requirements of said Rule 144, the Securities Act, and

the Exchange Act, a copy of the most recent annual or quarterly report of the

Company, and such other reports and documents so filed by the Company as the

Holder may reasonably request in complying with any rule or regulation of the

SEC allowing the Holder to sell any such securities without registration.




 




1.8           Demand

Registration of Registrable Securities.




 




(a)           If

the Company shall receive at any time after the closing of the Agreement, a

written request from the Holder that the Company file a registration statement

under the Securities Act covering the Registrable Securities, then the Company

shall,




 




(i)            within fifteen (15) days of the

receipt thereof, give written acknowledgment of such request to the Holder; and




 




(ii)           subject to the limitations of

Sections 1.8.b-1.8.d, effect, as soon as practicable, the registration under

the Securities Act and all such qualifications and compliances as would permit

or facilitate the sale and distribution of all Registrable Securities that the

Holder requests to be registered.




 




(b)           If the Holder intends to distribute

the Registrable Securities covered by its request by means of an underwriting,

the Holder shall so advise the Company as a part of its request made pursuant

to this Section 1.8 and the Company shall include such information in the

written notice referred to in Section 1.8(a). 

In such event, the right of the Holder to include its Registrable

Securities in such registration shall be conditioned upon such Holder’s

participation in such underwriting and the inclusion of such Holder’s Registrable

Securities in the underwriting to the extent provided herein.  If the Holder proposes to distribute its

securities through such underwriting, the Holder shall enter into an

underwriting agreement in customary form with the underwriter or underwriters

selected for such underwriting (which underwriter or underwriters shall be

reasonably acceptable to the Company). 

Notwithstanding any other provision of this Section 1.8, if the

underwriter advises the Company in writing that marketing factors require a

limitation of the number of securities to be underwritten then the Company

shall so advise the Holder, and the number of shares that may be included in

the underwriting shall be allocated to the Holders of such Registrable

Securities on a pro rata basis.  Any

Registrable Securities excluded or withdrawn from such underwriting shall be

withdrawn from the registration.




 




(c)           If, at the time any written request

for registration is received by the Company pursuant to this Section 1.8, the

Company has determined to proceed with the actual preparation and filing of a

registration statement under the Securities Act in connection with the proposed

offer and sale for cash of any of its securities by it or any of its security

holders, such written request shall be deemed to have been given pursuant to Section

1.2 hereof rather than this Section 1.8, and the rights of the Holder shall be

governed by Section 1.2 hereof.




 




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(d)           Upon the effectiveness of a

Registration Statement under this Section 1.8, the Company will keep such

Registration Statement effective for up to ninety (90) days.




 




1.9           Transfer

of Registration Rights.  Holders’

rights to cause the Company to register their securities and keep information

available, granted to them by the Company under Sections 1.2, 1.7, and

1.8 may be assigned to a transferee or assignee of a Holder’s Registrable

Securities not sold to the public, provided, that the Company is given written

notice by such Holder at the time of or within a reasonable time after said

transfer, stating the name and address of said transferee or assignee and

identifying the securities with respect to which such registration rights are

being assigned.  The Company may

prohibit the transfer of any Holders’ rights under this Section 1.9 to any proposed

transferee or assignee who the Company reasonably believes is a competitor of

the Company.




 




2.             General.




 




2.1           Waivers and Amendments.  With the written consent of the record or

beneficial holders of at least a majority of the Registrable Securities, the

obligations of the Company and the rights of the Holders of the Registrable

Securities under this agreement may be waived (either generally or in a

particular instance, either retroactively or prospectively, and either for a

specified period of time or indefinitely), and with the same consent the

Company, when authorized by resolution of its Board of Directors, may enter

into a supplementary agreement for the purpose of adding any provisions to or

changing in any manner or eliminating any of the provisions of this Agreement;

provided, however, that no such modification, amendment or waiver shall reduce

the aforesaid percentage of Registrable Securities without the consent of all

of the Holders of the Registrable Securities. 

Upon the effectuation of each such waiver, consent, agreement of

amendment or modification, the Company shall promptly give written notice

thereof to the record holders of the Registrable Securities who have not

previously consented thereto in writing. 

This Agreement or any provision hereof may be changed, waived,

discharged or terminated only by a statement in writing signed by the party

against which enforcement of the change, waiver, discharge or termination is

sought, except to the extent provided in this Section 2.1.




 




2.2           Governing

Law.  This Agreement shall be

governed in all respects by the laws of the State of California as such laws

are applied to agreements between California residents entered into and to be

performed entirely within California.




 




2.3           Successors

and Assigns.  Except as otherwise

expressly provided herein, the provisions hereof shall inure to the benefit of,

and be binding upon, the successors, assigns, heirs, executors and

administrators of the parties hereto.




 




2.4           Entire

Agreement.  Except as set forth

below, this Agreement and the other documents delivered pursuant hereto

constitute the full and entire understanding and agreement between the parties

with regard to the subjects hereof and thereof.




 




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2.5           Notices,

etc.  All notices and other

communications required or permitted hereunder shall be in writing and shall be

mailed by first class mail, postage prepaid, certified or registered mail,

return receipt requested, addressed (a) if to Holder, at such Holder’s address

as set forth below, or at such other address as such Holder shall have

furnished to the Company in writing, or (b) if to the Company, at the

Company’s address set forth below, or at such other address as the Company

shall have furnished to the Holder in writing.




 




2.6           Severability.  In case any provision of this Agreement

shall be invalid, illegal, or unenforceable, the validity, legality and

enforceability of the remaining provisions of this Agreement or any provision

of the other Agreements shall not in any way be affected or impaired thereby.




 




2.7           Titles

and Subtitles.  The titles of the

sections and subsections of this Agreement are for convenience of reference

only and are not to be considered in construing this Agreement.




 




[remainder of page intentionally left blank; signature page follows]




 




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2.8           Counterparts.  This Agreement may be executed in any number

of counterparts, each of which shall be an original, but all of which together

shall constitute one instrument.




 




	

  PURCHASER


  	

  COMPANY


  
	

   


  	

   


  
	

  SILICON VALLEY BANK


  	

  ZAMBA CORPORATION


  
	

   


  	

   


  
	

  By:


  	

  /s/ J. Anthony Clarkson


  	

  By:


  	

  /s/ Michael H. Carrel


  
	

  Name:


  	

  J. Anthony Clarkson


  	

  Name:


  	

  Michael H. Carrel


  
	

  Title:


  	

  Market Manager


  	

  Title: 


  	

  Chairman of the Board, President or Vice President


  
	

  Address:


  Silicon Valley Bank 


  Attn: Treasury Department 


  3003 Tasman Drive 


  Santa Clara, CA  95054


  	

  Address: 


  ZAMBA Corporation 


  3033 Excelsior Boulevard, Suite 200 


  Minneapolis, Minnesota 55416


  





 




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