Registration Rights Agreement

EXHIBIT 10.1
NETERGY NETWORKS


REGISTRATION RIGHTS AGREEMENT


This Registration Rights Agreement (together with any amendments and exhibits thereto, the "AGREEMENT") is made as of the 30th day of June, 2000, between 8x8, Inc., a Delaware corporation doing business as Netergy Networks (together with any successors "NETERGY"), and the parties listed on Exhibit A hereto, pursuant to that certain Share Exchange Agreement, dated as of May 19, 2000 among Netergy, UForce Inc., and the Security Holders named therein (the "SHARE EXCHANGE AGREEMENT"), and pursuant to the Termination Agreement and Mutual Release dated as of May 19, 2000 by and among Netergy, Logibro Inc. and UForce Inc.


1. DEFINITIONS. As used in this Agreement:


(a) "CLOSING DATE" means the Closing Date as defined in Section 1.1 of the Share Exchange Agreement.


(b) "EFFECTIVE DATE" shall mean the date upon which a registration statement filed pursuant to Section 2 of this Agreement shall have been declared effective by the SEC.


(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.


(d) "FORM S-3" means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC which similarly permits inclusion or incorporation of substantial information by reference to other documents filed by Netergy with the SEC.


(e) "HOLDERS" shall mean persons holding Registrable Securities.


(f) "IMMEDIATE FAMILY" of an individual shall mean a spouse of such individual, or a parent, sibling or lineal descendant of such individual or his or her spouse, whether by adoption or otherwise.


(g) "LOCKUP SHARES" means those Registrable Securities that are subject to lockup provisions pursuant to the Share Exchange Agreement or any stock restriction agreement the form of which is listed as an exhibit to the Share Exchange Agreement (the "LOCKUP PROVISIONS").


(h) "MAJORITY HOLDERS" means those Holders or their designated representative, who together own at least a majority of the Registrable Securities, but including SGF Tech Inc. or any direct or indirect subsidiaries thereof (including 9091-1215 Quebec, Inc.) holding Registrable Securities.


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(i) "MATERIAL EVENT" means the happening of any event during the period that a registration statement described in Section 2 hereof is required to be effective as a result of which, in the reasonable judgment of Netergy, such registration statement or the related prospectus contains or may contain any untrue statement of a material fact or omits or may omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.


(j) "OPTION SHARES" means the Parent Shares purchasable or purchased from time to time under the Company Options assumed by Netergy or Replacement Options issued by Netergy as of the Closing Date, together with all additional securities receivable or received in payment of dividends or distributions on or splits of those securities received as a result of adjustments provided for in the related Option Agreements.


(k) "REGISTRABLE SECURITIES" means the Parent Shares issued to the Security Holders or to Logibro Inc., or issuable to the Security Holders upon exchange of the Exchangeable Shares (including the Indemnification Shares), together with all additional securities receivable or received in payment of dividends or distributions on or splits of those securities; provided, however, that such securities shall only be treated as Registrable Securities if and so long as they have not been (A) sold to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (B) sold or are, in the opinion of counsel for Parent, available for sale in a single transaction exempt from the registration and prospectus delivery requirements of the Securities Act so that all transfer restrictions and restrictive legends with respect thereto may be removed prior to or upon the consummation of such sale.


(l) "SEC" means the Securities and Exchange Commission.


(m) "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.


Terms not otherwise defined herein have the meanings given to them in the Share Exchange Agreement.


2. REGISTRATION.


(b) Form S-3 Registration. Netergy shall use commercially reasonable efforts to cause the Registrable Securities issued or issuable to the Holders to be registered under the Securities Act no later than 120 days after the Closing Date, so as to permit the resale thereof, and in connection therewith shall prepare and file with the SEC and shall use commercially reasonable efforts to cause to become effective, a Form S-3 covering the Registrable Securities; provided, however, that the Holders shall provide all such information and materials relating to the Holders as may be required to be disclosed pursuant to applicable SEC rules and regulations, and take all such commercially reasonable action as may be required in order to permit Netergy to comply with all the applicable requirements of the SEC in order to cause the Form S-3 or other registration statement required to be filed pursuant to this Section 2 to be declared effective by the SEC, such provision of information and materials to be a condition precedent to the obligations of Netergy pursuant to this Agreement and the Share Exchange Agreement.


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(c) Demand Registration. In the event that (i) a Form S-3 covering the Registrable Securities is not effective within 120 days after the Closing Date, (ii) Netergy ceases to be eligible to use Form S-3 or (iii) Rule 144 ceases to be available for the resale of the Registrable Securities under the Securities Act, then if Netergy shall receive from either (a) the Majority Holders or (b) SGF Tech Inc. (or its direct or indirect subsidiary holding Registrable Securities), a written request that Netergy effect a registration, qualification or compliance with respect to Registrable Securities constituting at least 25% of the Registrable Securities, Netergy shall within 120 days of such request, use its commercially reasonable efforts to effect such registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or S-8 or any successor thereto) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities specified in such request; provided, however, that Netergy shall not be obligated to effect (i) more than two (2) such registrations in the aggregate being agreed that only one of such requests may be made by each of (1) the Majority Holders and (2) SGF Tech Inc. (or its subsidiaries) and (ii) any registration under the Securities Act except in accordance with the provisions of this Agreement. The offerings made pursuant to such registrations under this Section 2 shall not be underwritten.


(d) Form S-8 Registration. Within 60 days after the Closing Date, Netergy shall prepare and file a registration statement on Form S-8 registering the Option Shares under the Securities Act.


(e) Release of Registrable Securities from Lockup Provisions. In the event that any Lockup Shares are released from Lockup Provisions prior to 120 days after the Closing Date, then Netergy shall, commencing at the time of the release of such Lockup Shares, use commercially reasonable efforts to cause the Form S-3 to become effective as soon as practicable rather than within 120 days after the Closing Date; but in any case no later than 120 days after the Closing Date.


3. POSTPONEMENT OF REGISTRATION.


(b) Registration. Notwithstanding Section 2 above, Netergy shall be entitled to postpone the declaration of effectiveness of any registration statement prepared and filed pursuant to Section 2 for a reasonable period of time, but not in excess of 60 calendar days after the applicable deadline, if the Board of Directors of Netergy, acting in good faith, determines that there exists a Material Event.


(c) Material Event. The Holders agree that, upon receipt of any notice from Netergy of the happening of a Material Event, the Holders will forthwith discontinue any disposition of Registrable Securities or Option Shares pursuant to any registration statement described in Section 2 until the Holders' receipt of copies of supplemented or amended prospectuses prepared by Netergy (which Netergy will use its commercially reasonable efforts to prepare and file promptly), and, if so directed by Netergy, the Holders will deliver to Netergy all copies in their possession, other than permanent file copies then in the Holders' possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. Holders that are "affiliates" of Netergy within the meaning of Rule 144(a)(1) agree to discontinue disposition of the Registrable Securities during any restricted trading periods imposed on affiliates by Netergy's Insider Trading Compliance Program.


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4. OBLIGATIONS OF NETERGY.


(a) Except as set forth in Sections 2 and 3, Netergy shall (i) prepare and file with the SEC the registration statement in accordance with Section 2 hereof with respect to the shares of Registrable Securities and the Option Shares and shall use commercially reasonable efforts to cause such registration statement to become effective as provided in Section 2 and to keep such registration statement described in Section 2(a) and 2(b) continuously effective until the earlier to occur of (A) the sale of all of the Registrable Securities so registered and (B) the first anniversary of the Effective Date; (ii) furnish to the Holders such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus), as the Holders may reasonably request in order to effect the offering and sale of the Registrable Securities and Option Shares to be offered and sold, but only while Netergy shall be required under the provisions hereof to cause such registration statement to remain current; (iii) use its commercially reasonable efforts to register or qualify the shares of the Registrable Securities and Option Shares covered by such registration statement under the securities or "blue sky" laws of such jurisdictions as the Holders shall reasonably request (provided that Netergy 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 jurisdiction where it has not been qualified), and do any and all other acts or things which may be reasonably necessary or advisable to enable the Holders to consummate the public sale or other disposition of the Registrable Securities and Option Shares in such jurisdictions; (iv) cause all such Registrable Securities and Option Shares to be listed on each securities exchange or National Association of Securities Dealers, Inc. Automated Quotation System on which similar securities issued by Netergy are then listed; (v) notify the Holders of any Material Event; (vi) so long as any registration statement described in Section 2 remains effective, promptly prepare, file and furnish to the Holders a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securities and Option Shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ...