EXHIBIT 10.17
NON-MANAGEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into this 6th day of March, 2000, between SmartDisk Corporation, a Delaware
corporation (the "Company") and the stockholders of the Company that have
executed this Agreement or a counterpart hereof in accordance with Section 6(e)
(each a "Holder" and collectively, the "Holders").
RECITALS
A. The Company is contemporaneously issuing and delivering to Holders
an aggregate of approximately 1,067,481 shares (the "Restricted Shares") of the
Company's common stock, par value $0.001 per share (the "Common Stock"),
pursuant to that certain Agreement and Plan of Merger, dated as of February 23,
2000 (the "Merger Agreement"), among the Company, VST Acquisition, Inc., a
Delaware corporation and wholly owned subsidiary of the Company, VST
Technologies, Inc., a Delaware corporation, and the "Shareholders" named
therein. Capitalized terms used in this Agreement and which are not defined
herein shall have the same meanings ascribed thereto in the Merger Agreement.
B. As contemplated by the Merger Agreement, the Company has agreed
herein to provide to Holders certain registration rights with respect to the
Restricted Shares.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and covenants set
forth in the Merger Agreement, the parties agree as follows:
1. REGISTRATION RIGHTS.
(a) INCIDENTAL (PIGGYBACK) REGISTRATION. Subject to the
limitations set forth in this Agreement, if the Company at any time within one
(1) year of the date hereof proposes to file on its behalf and/or on behalf of
any of its security holders ("the demanding security holders") a Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act"),
on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of the Company
pursuant to any employee benefit plan, respectively) for the general
registration of securities to be sold for cash with respect to its Common Stock
or any other class of equity security (as defined in Section 3(a)(11) of the
Securities Exchange Act of 1934) of the Company, it will give written notice to
the Holders at least 15 days before the initial filing with the Commission of
such Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered by the Company. The
notice shall offer to include in such filing the aggregate number of shares of
Restricted Shares as the Holders may request, subject, however, to the
provisions of this Section 1(a) below.
If the Holders desire to have Restricted Shares registered under this
Section 1, they shall advise the Company in writing within 10 days after the
date of receipt of such offer from the Company, setting forth the amount of such
Restricted Shares for which registration is requested. The Company shall
thereupon include in such filing the number of shares of Restricted Shares of
each Holder for which registration is so requested, subject to the following
provisions of this paragraph. In the event that the proposed registration by the
Company is, in whole or in part, an underwritten public offering of securities
of the Company, the Company shall not be required to include any of the
Restricted Shares in such underwriting unless Holders agree to accept the
offering on the same terms and conditions as the shares of Common Stock, if any,
otherwise being sold through the underwriters under such registration and
provided further, that: (i) if the managing underwriter determines and advises
the Company that the inclusion of all Restricted Shares proposed to be included
by the Holders in the underwritten public
offering and other issued and outstanding shares of Common Stock proposed to be
included therein by the persons other than the Holders, the Company and any
holder who has exercised demand registration rights with respect to such
registration (the "Other Shares") would jeopardize the success of the Company's
offering, then (x) the Company shall be required to include in the offering (in
addition to the number of shares to be sold by the Company and any demanding
security holder) only that number of Restricted Shares that the managing
underwriter believes will not jeopardize the success of the Company's offering
and (y) the number of Restricted Shares and Other Shares included in such
underwritten public offering shall be reduced pro rata based upon the number of
shares of Restricted Shares and Other Shares requested by the holders thereof to
be registered in such underwritten public offering subject to the provisions of
that certain Investors' Rights Agreement between the Company and Phoenix House
Investments, LLC, Toshiba Corporation and ▇▇▇▇▇▇▇ International Systems
Corporation (collectively, the "Prior Holders"), requiring that such reduction
in the number of Other Shares included in such offering not reduce the number of
Other Shares owned by the Prior Holders included in the Offering, below 30% of
the total amount of securities included in the offering; and (ii) in each case
all Restricted Shares owned by the Holders which are not included in the
underwritten public offering shall be subject to customary underwriter "lock-up"
arrangements and not sold or otherwise transferred by the Holders for a period,
not to exceed one hundred eighty (180) calendar days, which the managing
underwriter reasonably determines as necessary in order to effect the
underwritten public offering. In the event the Company chooses a registration
form which limits the size of the offering, either in terms of the number of
shares or dollar amount, the Company shall not be required to include in the
offering (in addition to the number of shares to be sold by the Company and any
demanding security holder) Restricted Shares which would exceed such limits and
the number of Restricted Shares and Other Shares included in such underwritten
public offering shall be reduced pro rata based upon the number of shares of
Restricted Shares and Other Shares requested by the holders thereof to be
registered in such underwritten public offering.
(b) REGISTRATION AT THE REQUEST OF HOLDERS.
(i) Subject to the limitations set forth in this
Agreement, the Company agrees that upon receipt by the Company of a Registration
Demand (as hereinafter defined) satisfying the conditions of paragraph (iii) of
this Section 1(b), the Company will (A) give prompt written notice of such
proposed registration to all Holders, who shall have the right (by providing the
Company a written election within ten (10) days of receipt of such notice) to
have their Restricted Shares included in such registration, and (B) file a
registration statement under the Securities Act, with reasonable promptness, and
in any case not later than sixty (60) days after the Company's receipt of the
Registration Demand for an offering of such number of Restricted Shares as to
which registration is requested in the Registration Demand. The Company shall
use its best efforts to cause such registration statement to promptly become
effective under the Securities Act. No Registration Demand shall be effective or
impose any obligation upon the Company unless the Registration Demand shall
request the registration of Restricted Shares with an aggregate offering value
of at least $5 million. The Company shall be entitled to postpone (upon written
notice to the Holders) for up to sixty (60) days the filing or requested
effectiveness of a registration statement in respect of a Registration Demand
(but no more than once in any nine-month period) if the Company's Board of
Directors determines in good faith and in its reasonable judgment that effecting
the registration in respect of such Registration Demand would have a material
adverse affect on any proposal or plan by the Company to engage in any material
acquisition or disposition of assets (other than in the ordinary course of
business) or any material merger, consolidation, tender offer or other similar
transaction.
(ii) The Company shall be entitled to include in any
public offering of Common Stock pursuant to a registration statement filed
pursuant to this Section 1(b) or pursuant to Section 1(d), securities of the
Company entitled generally to vote in the election of directors (or any
securities convertible into or exchangeable for or exercisable for the purchase
of securities so entitled generally to vote in the election of directors) to be
sold by other shareholders of the Company or by the Company for its own account,
except as and to the extent that in the opinion of the managing underwriter
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(if any), such inclusion would adversely affect the marketing of the Restricted
Shares to be sold by the Holders in such offering, provided that if the managing
underwriter believes that the inclusion of all shares requested to be included
in the proposed underwritten public offering would adversely affect the
marketing of the Restricted Shares, then the aggregate number of shares to be
offered by the Company and the other shareholders of the Company having similar
registration rights shall be reduced so as to permit the offering of all
Restricted Shares requested by the Holders without such adverse effects.
(iii) A "REGISTRATION DEMAND" shall be a written
notice from the Holders to the Company in accordance with the requirements of
this Agreement which states that the Holders of a majority of the Restricted
Shares desire that the Company effect the registration of Restricted Shares
pursuant to a registration statement under the Securities Act and requesting
that the Company effect registration with respect to a specified number of each
Holder's Restricted Shares within the limits of this Agreement. No more than one
Registration Demand may be made under this Agreement, and no Registration Demand
may be made after the second anniversary of the Effective Time of the Merger.
The Registration Demand shall not be made prior to the four month anniversary of
the Effective Time of the Merger or after August 12, 2000. No Holder shall at
any time request pursuant to this Section 1(b) the registration of the sale of
more than 50% of the Restricted Shares (net of any Restricted Shares registered
pursuant to Section 1(a) above) received by such Holder pursuant to the Merger.
The Company's obligation to register any Holder's Restricted Shares is further
subject to the requirements of paragraph (c) of this Section 1.
(c) UNDERWRITING DOCUMENTS; OTHER LIMITATIONS.
(i) Notwithstanding any provision of this Agreement
to the contrary, a Holder may not include any Restricted Shares in any
underwritten offering required or contemplated under this Agreement unless the
Holder timely executes and delivers the form of underwriting agreement, custody
agreement, power of attorney and other agreements and instruments reasonably
required by the underwriters of such offering in connection with the preparation
and consummation of such offering.
(ii) Notwithstanding any provision of this Agreement
to the contrary, in no event shall the Company be required to register the sale
of any Restricted Shares held by the Escrow Agent.
(d) FORM S-3 REGISTRATION.
(i) Subject to the limitations set forth in this
Agreement, the Company will file as promptly as possible after it is eligible to
do so (and in no event later than October 16, 2000) a registration statement on
Form S-3 (the "Shelf Registration Statement") covering all of the Restricted
Shares and thereafter shall use its best efforts to cause the Shelf Registration
Statement to be declared effective as soon as practicable following such filing
and to maintain such effectiveness until the one year anniversary of the date
hereof; PROVIDED, HOWEVER, that the Company shall have the right to prohibit the
sale of Restricted Shares pursuant to the Shelf Registration Statement, upon
notice to the Holders (A) if in the opinion of counsel for the Company, the
Company would thereby be required to disclose information not otherwise then
required by law to be publicly disclosed, provided that the Company shall use
its best efforts to minimize the period of time in which it shall prohibit the
sale of any shares of Common Stock pursuant to this clause (A), which shall in
no event exceed 45 days in any one-year period; or (B) during the period
starting with the date 10 days prior to the Company's estimate of the date of
filing of, and ending on a date 90 days after the effective date of, a
registration in which the Holders are entitled to participate in accordance with
Section 1(a) hereof, or such longer post-effective periods as may be reasonably
required by the underwriter or underwriters if such offering is underwritten.
2. CERTAIN REGISTRATION PROCEDURES. If the Company is required by the
provisions of Section 1 to use its best efforts to effect the registration of
any Restricted Shares under the Securities Act, the Company will:
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(a) prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to such
Restricted Shares and such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective until the earliest of (i) the
completion of the distribution of the registered securities, and (ii) the three
(3)-month anniversary of the effective date of the registration statement (or,
in the case of a registration statement filed on Form S-3, and subject to the
limitations contemplated by Section 1(d) hereof, the one-year anniversary of the
Effective Time) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by such
registration statement;
(b) furnish to any selling security holders such number of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents, as such selling security holders may reasonably request;
(c) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or "blue sky"
laws of such jurisdictions within the United States and Puerto Rico as each
Holder of securities shall reasonably request (provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified or
to file any general consent to service or process or to qualify as a broker or
dealer in securities), and do such other reasonable acts and things as may be
required of it to enable the Holders to consummate the disposition in such
jurisdiction of the securities covered by such registration statement;
(d) take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Common Stock; and
(e) promptly notify in writing the Holders and each
underwriter (if any) of the happening of any event, during the period of
distribution, as a result of which the registration statement includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing (in which case, the Company shall
promptly provide the Holders and/or underwriters, as appropriate, with revised
or supplemental prospectuses and if so requested by the Company in writing, the
Holders shall promptly take action to cease making any offers of the Restricted
Shares until receipt and distribution of such revised or supplemental
prospectuses).
3. EXPENSES. All expenses incurred in complying with this Agreement,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for the Company, expenses of any special audits
incident to or required by any such registration and expenses (including
attorneys' fees) of complying with the securities or blue sky laws of any
jurisdictions pursuant to Section 2(c), except to the extent required to be paid
by participating selling security holders by state securities or blue sky laws,
shall be paid by the Company, except that the Company shall not be liable for
any fees, discounts or commissions to any underwriter or any fees or
disbursements of counsel for Holders in respect of the securities sold by
Holders, which amounts shall be paid by the Holders.
4. INDEMNIFICATION. In the event of any registration of any Restricted
Shares under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the seller of such shares, each underwriter of such
shares, if any, each such broker or any other person, if any, who controls any
of the foregoing persons, within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which any of the
foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement of a material fact
contained in any registration statement under which such Restricted Shares were
registered under the Securities Act, any final prospectus contained therein, or
any amendment or supplement thereto, or any document prepared and/or furnished
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by the Company incident to the registration or qualification of any Restricted
Shares, or arise out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any final prospectus, necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading, or any violations by the Company of the Securities Act or
state securities or "blue sky" laws applicable to the Company relating to action
or inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
such seller, such underwriter, broker or other person acting on behalf of such
seller and each such controlling person for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be so obligated to indemnify and reimburse any such Holder for
any such loss, claim, damage or liability that arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said final prospectus or said amendment or
supplement or any document incident to the registration or qualification of any
Restricted Shares in reliance upon and in conformity with information furnished
by such Holder to the Company for use in preparation thereof. Before Restricted
Shares held by the Holders shall be included in any registration pursuant to
this Agreement, the Holders shall have agreed to indemnify and hold harmless (in
the same manner and to the same extent as set forth in this Section 4 for the
indemnification of such prospective seller and underwriter by the Company) the
Company, each director of the Company, each officer of the Company who shall
sign such registration statement and any person who controls the Company within
the meaning of the Securities Act, with respect to any untrue statement or
omission from such registration statement or final prospectus contained therein
or any amendment or supplement thereto, if such untrue statement or omission was
(i) made in reliance upon and in conformity with information furnished to the
Company by any Holder for use in the preparation of such registration statement,
final prospectus or amendment or supplement or (ii) contained in any
registration statement or prospectus which was utilized by any Holder or any
controlling person or affiliate of any Holder either (A) on any date which is in
excess of 90 days after the date of the Prospectus included in the registration
statement, or (B) after the Holders were notified, in accordance with Section
2(e) hereof, that such registration statement contained an untrue statement of a
material fact or omitted to state any material fact. Promptly after receipt by
an indemnified party of notice of the commencement of any action involving a
claim referred to in this Section 4, such indemnified party will, if a claim in
respect thereof is made against any indemnifying party, give written notice to
the latter of such claim and/or the commencement of such action. In case any
such action is brought against an indemnified party, the indemnifying party will
be entitled to participate in and assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party shall be responsible for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, provided that if any indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to such
indemnified party which conflict in any material respect with those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section 4, such indemnifying party shall reimburse such indemnified party
and shall not have the right to assume the defense of such action on behalf of
such indemnified party and such indemnifying party shall reimburse such
indemnified party and any person controlling such indemnified party for that
portion of the fees and expenses of any counsel retained by the indemnified
party which are reasonably related to the matters covered by the indemnity
agreement provided in this Section 4. The indemnifying party shall not make any
settlement of any claims indemnified against hereunder without the written
consent of the indemnified party or parties, which consent shall not be
unreasonably withheld.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 4 is due
in accordance with its terms but for any reason is held to be unavailable to an
indemnified party in respect to any losses, claims, damages and liabilities
referred to herein, then the indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
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to which such party may be subject in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Holders on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph of Section 4, (a) in no case shall any one Holder be liable or
responsible for any amount in excess of the net proceeds received by such
selling Holder from the offering of Restricted Shares and (b) the Company shall
be liable and responsible for any amount in excess of such proceeds; PROVIDED,
HOWEVER, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect to which a claim for contribution may be made against another
party or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve such party from any other
obligation it or they may have thereunder or otherwise under this Section. No
party shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its prior written consent, which consent
shall not be unreasonably withheld.
5. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding the
other provisions of this Agreement, the Company shall not be obligated to
register the Restricted Shares of Holders if, in the opinion of counsel to the
Company, the sale or other disposition of Holders' Restricted Shares may be
effected without registering such Restricted Shares under the Securities Act.
The Company's obligations under Section 1 with respect to each Holder are also
expressly conditioned upon such Holder furnishing to the Company in writing such
information concerning such Holder and such Holder's controlling persons and the
terms of such Holder's proposed offering of Restricted Shares as the Company or
the managing underwriter (if any) shall reasonably request for inclusion in the
applicable registration statement.
6. MISCELLANEOUS.
(a) NOTICES. Any notice, request, instruction, correspondence
or other document to be given hereunder by any party hereto to another (herein
collectively called "NOTICE") shall be in writing and delivered personally or
mailed by registered or certified mail, postage prepaid and return receipt
requested, or by telecopier, as follows:
IF TO THE COMPANY: SmartDisk Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
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IF TO THE HOLDERS: To the address set opposite each Holder's
name on the signature page attached hereto
WITH COPIES TO:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Each of the above addresses for notice purposes may be changed by providing
appropriate notice hereunder. Notice given by personal delivery or registered
mail shall be effective upon actual receipt. Notice given by telecopier shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next normal business day after
receipt if not received during the recipient's normal business hours. All
Notices by telecopier shall be confirmed by the sender thereof promptly after
transmission in writing by registered mail or personal delivery. Anything to the
contrary contained herein notwithstanding, notices to any party hereto shall not
be deemed effective with respect to such party until such Notice would, but for
this sentence, be effective both as to such party and as to all other persons to
whom copies are provided above to be given.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company. The
rights granted to each Holder pursuant to the terms of this Agreement may be
transferred by such Holder to (i) another Holder, (ii) any affiliate of such
Holder, (iii) any person or entity acquiring at least 50,000 Restricted Shares
(such number being subject to adjustment for any stock dividend, stock split,
subdivision, combination or other recapitalization of the Common Stock of the
Company) or such lesser number as the Board of Directors of the Company may
agree in writing, or (iv) any person or entity acquiring 100% of such Holder's
Restricted Shares if the number of such Restricted Shares is less than the
amount contemplated by the preceding clause (iii); PROVIDED, HOWEVER, that in
each such case (x) the Company is given written notice by the transferee at the
time of such transfer, stating the name and address of the transferee and
identifying the securities with respect to which such rights are being assigned,
and (y) any transferee (other than a Holder) to whom rights hereunder are
transferred shall, as a condition to such transfer, deliver to the Company a
written instrument by which such transferee agrees to be bound by the
obligations imposed upon Holders under this Agreement to the same extent as if
such transferee were a party hereto. Until the Company receives such notice and
written instrument, the transfer shall not be valid and shall not be reflected
on the books and records of the Company. A transferee to whom rights are
transferred pursuant to this subsection (b) may not again transfer such rights
to any other person or entity, other than as provided in this subsection.
(c) GOVERNING LAW. The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
(excluding any conflict of law rule or principle that would refer to the laws of
another jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY
JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
(d) ENTIRE AGREEMENT; AMENDMENTS; WAIVERS. This Agreement,
together with the Merger Agreement, constitutes the entire agreement between and
among the parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth specifically herein or contemplated hereby. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the Company and the Holders of at least 50% of the
Restricted
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Shares. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (regardless of whether
similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly provided.
(e) MULTIPLE COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. In addition, any
former stockholder of [FIRE] who executes a counterpart hereof within 30 days of
date first written above shall be deemed a "Holder" and upon such execution
shall have all of the rights and obligations of a Holder hereunder.
(f) SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(g) RULE 144 MATTERS. The Company agrees, during the one-year
period commencing on the first anniversary of the Effective Time, to:
(i) use its best efforts to make and keep current
public information about the Company available, as those terms are understood
and defined in Rule 144;
(ii) use its best efforts to file with the Commission
in a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(iii) furnish to any holder of Restricted Shares upon
request (i) a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the Company,
and (ii) such other reports and documents of the Company as such holder may
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
IN WITNESS WHEREOF, the Company and Holders have executed this
Registration Rights Agreement as of the date first above written.
SMARTDISK CORPORATION:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
HOLDERS: ADDRESS:
KEYSTONE VENTURE PARTNERS V, L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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By: Keystone V Partners, L.P.
By: Keystone V MGT Co.
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Managing Director
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 51 Pilgrim Path
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/s/ ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, JOINTLY 138 Diablo View Drive
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/s/ ▇▇▇▇ ▇▇▇▇▇▇ c/o Lambda Fund
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ FAMILY TRUST
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Title: Trustee ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ c/▇ ▇▇▇▇▇▇ Partners Ltd.
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Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Boston, MA 01810
GERMANIUM POWER DEVICES CORP.
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--------------------------------------------- P.O. Box 3065
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GERMANIUM POWER DEVICES CORP.
PROFIT SHARING TRUST GROUP F
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Trustee
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RHOVIN ENGINEERING PENSION PLAN
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MASSACHUSETTS TECHNOLOGY DEVELOPMENT
CORPORATION
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Vice President
LE SERRE
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Partner
H & D INVESTMENTS II LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇
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ADD VENTURE ASSOCIATES
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Partner
ZERO STAGE CAPITAL V, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 17th Floor
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General Partner
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GREEN MOUNTAIN CAPITAL, L.P.
By: /s/ I.M. ▇▇▇▇▇▇▇▇ RR1, Box 1503
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I.M. ▇▇▇▇▇▇▇▇
General Manager
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T & B INVESTORS, LLC
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Managing Partner
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▇▇▇▇▇ PARTNERS III
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-Imaging
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Automation
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Managing Partner
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