REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered into as
the 16th day of December, 1993, by and between Total Control Products, Inc.,
an Illinois corporation ("TCP") and ▇. ▇. ▇▇▇▇▇▇ ("Investor"), an individual
having his residence at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
PRELIMINARY STATEMENT
Pursuant to the Agreement for Purchase and Sale of Stock (the
"Investment Agreement") by and between TCP and Investor, dated December 16,
1993, Investor has agreed to purchase common stock of TCP representing 23.53%
of the fully-diluted shares of Common Stock, without par value, of TCP
("Common Stock"). Investor's agreement to purchase such shares of Common
Stock is on the condition that TCP agree to certain terms and conditions
related to the registration of securities of TCP, as set forth in this
Agreement.
TERMS AND CONDITIONS
In consideration of the mutual covenants and agreements contained
in this Agreement and the Investment Agreement, and intending to be legally
bound, the parties hereto agree as follows:
SECTION 1.0. DEFINITIONS. As used in this Agreement, the
following terms have the meanings indicated below or in the referenced
sections of this Agreement.
"Common Stock": TCP's Common Stock, without par value, as the same
may be constituted from time to time.
"Demand Registration": See SECTION 3.0(a) and 3.0(b).
"Exchange Act": The Securities Exchange Act of 1934, as amended
from time to time.
"Initial Public Offering": The first primary offering of Common
Stock by TCP registered pursuant to the Securities Act.
"Person": An individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, and a government entity or any department,
agency, or political subdivision thereof.
"Piggyback Registration": See SECTION 4.0(a).
"Registrable Securities": The 401,551 shares of Common Stock to
be purchased by Investor pursuant to the Investment Agreement and any other
shares of Common Stock acquired by Investor after the date hereof.
"Registration Expenses": See SECTION 7.0.
"Restricted Securities": The Registrable Securities, subject to the
provisions of SECTION 2.0(a).
"SEC": The United States Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended from time
to time.
"Underwritten registration or underwritten offering": A
registration in which securities of the Company are sold pursuant to a firm
commitment underwriting.
SECTION 2.0. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) REGISTRABLE SECURITIES. The securities entitled to the
benefits of this Agreement are those Registrable Securities that are
Restricted Securities. A Registrable Security ceases to be a Restricted
Security when (i) it is registered under the Securities Act and disposed of
in accordance with the registration statement covering it, or (ii) it is sold
or transferred in accordance with the requirements of Rule 144 (or similar
provisions then in effect) promulgated by the SEC under the Securities Act
("Rule 144").
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever that Person owns, directly or
beneficially, or has the right to acquire Registrable Securities,
disregarding any legal restrictions upon the exercise of that right.
(c) MAJORITY OF REGISTRABLE SECURITIES. As used in this
Agreement, the term "majority of the Registrable Securities" means 51% or
more of the Registrable Securities being registered unless the text indicates
that it is 51% or more of the Registrable Securities then issued and
outstanding.
SECTION 3.0. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION. At any time after June 1, 1996 and
prior to June 1, 2003, the holders of a majority of the Registrable
Securities then issued and outstanding may demand that the Company register
all or part of their Registrable Securities under the Securities Act (a
"Demand Registration") on Forms ▇-▇, ▇-▇, ▇-▇ (or similar forms then in
effect) promulgated by the SEC under the Securities Act. Within ten days
after receipt of a demand, the Company will notify in writing all holders of
Registrable Securities of the demand. Any holder who wants to include his or
its Registrable Securities in the Demand Registration must notify the
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Company within ten business days of receiving the notice of the Demand
Registration. Except as provided in this SECTION 3.0, the Company will
include in all Demand Registrations all Registrable Securities for which the
Company receives timely written demands for inclusion. All demands made
pursuant to this SECTION 3.0(a) must specify the number of Registrable
Securities to be registered and the intended method of disposing of the
Registrable Securities.
(b) FORM OF REGISTRATION. The Demand Registration will be on
Forms S-2 and S-3 whenever the Company is permitted to use either form (if
the Company would be permitted to use both forms for the Demand Registration,
the Company shall select which form to use), unless the holders of a majority
of the Registrable Securities or the underwriter reasonably request
registration on an expanded form. The Company will use its reasonable best
efforts to qualify for registration on Forms S-2 and S-3.
(c) REGISTRATION EXPENSES. The Company will pay all Registration
Expenses for (i) one Demand Registration on Form S-1 (or similar expanded
from then in effect) and (ii) one Demand Registration on Form S-2 or Form S-3
(or similar form then in effect). A registration initiated as a Demand
Registration for which the Company pays the Registration Expenses will not
count until it becomes effective and until at least 50% of the registered
securities requested to be included in that registration have actually been
sold. Except as specified herein, all expenses in connection with the Demand
Registrations that are not Registration Expenses or internal expenses of the
Company otherwise payable by the Company in accordance with SECTION 7(a)
shall be paid pro rata by the holders of the Registrable Securities included
in the registration.
(d) SELECTION OF UNDERWRITERS. The Company shall select the
investment banker(s) and manager(s) that will administrator the offering, as
long as the investment banker(s) and manager(s) are reasonably satisfactory
to the holders of a majority of the Registrable Securities requested to be
included in the offering, and the Company shall enter into a customary
underwriting agreement with those investment banker(s) and manager(s).
(e) PRIORITY ON DEMAND REGISTRATIONS. If the managing
underwriters give the Company and the holders of the Registrable Securities
being registered a written opinion that the number of Registrable Securities
requested to be included exceeds the number of securities that can be sold,
the Company will include in the registration only the number of Registrable
Securities that the underwriters believe can be sold. The number of
securities registered shall be allocated pro rata among the holders of
Registrable Securities on the basis of the total number of Registrable
Securities requested to be included in the registration.
(f) DELAY IN FILING. The Company may delay the filing of the
registration statement in connection with a Demand Registration for a period
of not more than 120 days upon the advice of the investment banker(s) and
manager(s) that will administer the offering that a delay is necessary or
appropriate under the circumstances. The Company may not use this right to
delay more than once during the term of this Agreement.
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(g) LIMITED PIGGYBACK RIGHT ON DEMAND REGISTRATIONS.
(1) Whenever the holders of Registrable Securities demand a
Demand Registration, the Company may notify in writing the other
holders of securities of the same type as the Registrable Securities
that are to be registered not later than the 5th day following the
Company's receipt of notice of exercise of the Demand Registration
right.
(2) The Company may include securities of the same type and
class of other holders in the Demand Registration, but only to the
extent that the managing underwriters give the Company their written
opinion that the total number or dollar amount of securities
requested to be included can be sold. If the number or dollar amount
of securities requested to be sold exceeds the amount that in the
opinion of the managing underwriters can be sold, the Company will
include in the registration: (i) first, all Registrable Securities,
and (ii) second, up to the full number of dollar amount of securities
requested to be included in the registration in excess of the number
or dollar amount of Registrable Securities to be registered
(allocated pro rata among the holders of the securities in such
proportions as the Company and those holders may agree).
(3) The holders of securities (including the Company) other than
Registrable Securities to be registered pursuant to this SECTION 3(g)
shall enter into the same agreement with the managing underwriters as
do the holders of the Registrable Securities.
(4) If the Company registers any of its securities of its own
behalf in a Demand Registration (in accordance with the provisions of
this SECTION 3.0(g), that Demand Registration shall count for the
purpose of determining the number of Demand Registrations for which
the Company is required under SECTION 3.0(c) to pay all Registration
Expenses, and the Company shall pay all of the Registration Expenses
of that registration.
(5) If any of the holders of any other securities of the Company
register those securities in a Demand Registration in accordance with
this Section 3.0(g), those holders shall pay the fees and expenses of
their counsel and their pro rata share of the Registration Expenses
not paid by the Company for any reason.
SECTION 4.0. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (except for the registration
of securities to be offered pursuant to an employee benefit plan on Form S-8
or any successor form then in effect) at any
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time other than pursuant to a Demand Registration (a "Piggyback
Registration"), it will so notify in writing all holders of Registrable
Securities not later than the earlier to occur of (i) the 5th day following
the Company's receipt of notice of exercise of other demand registration
rights, or (ii) 30 days prior to the anticipated filing date. Subject to the
provisions of SECTIONS 4.0(c) and (d), the Company will include in the
Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion within 15 business days
after the applicable holder's receipt of the Company's notice. The holders
of Registrable Securities may withdraw all or any part of the Registrable
Securities from a Piggyback Registration at any time before the printing of
the preliminary prospectus relating to the Piggyback Registration. If a
Piggyback Registration is an underwritten offering effected under
SECTION 4.0(c), all Persons whose securities are included in the Piggyback
Registration must sell their securities on the same terms and conditions as
apply to the securities being issued and sold by the Company. If a Piggyback
Registration is an underwritten offering effected under SECTION 4.0(d), all
Persons whose securities are included in the Piggyback Registration must sell
their securities on the same terms and conditions as apply to the securities
being sold by the Person(s) initiating the Piggyback Registration. A
registration of Registrable Securities pursuant to this SECTION 4.0 shall not
be counted as a Demand Registration under SECTION 3.0
(b) PIGGYBACK EXPENSES. The Company shall pay to the holders of
the Registrable Securities included in a Piggyback Registration all
Registration Expenses of those holders.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company
and the managing underwriters give the Company their written opinion that the
total number or dollar amount of securities requested to be included in the
registration exceeds the number or dollar amount of securities that can be
sold, the Company will include the securities in the registration in the
following order of priority: first, all securities the Company proposes to
sell; second up to the full number or dollar amount of Registrable Securities
requested to be included in the registration (allocated pro rata among the
holders of Registrable Securities on the basis of the dollar amount or number
of Registrable Securities requested to be included); and third, any other
securities (provided they are of the same class as the securities sold by the
Company) requested to be included, allocated among the holders of the
securities in such proportions as the Company and those holders may agree.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders
of the Company's securities, and the managing underwriters give the Company
their written opinion that the dollar amount or number of securities
requested to be included in the registration exceeds the dollar amount or
number of securities that can be sold, the Company will include in the
registration: (1) to the extent of 50% of the number or dollar amount of
securities other than Registrable Securities that in the underwriter's
opinion can be sold, the securities requested to be included in the
registration, allocated among the holders of those securities in such
proportions as the Company and those holders may agree, and (2) to the extent
of the balance, the Registrable Securities requested to be
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included, allocated pro rata among the holders of Registrable Securities on
the basis of the dollar amount or number of securities requested to be
included. If after including all of the Registrable Securities the
underwriters determine that there are additional securities that can be sold,
then securities other than Registrable Securities may be added to the
registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
an underwritten offering, the Company will select the investment banker(s)
and manager(s) that will administer the offering, as long as the investment
banker(s) and manager(s) are reasonably satisfactory to the holders of a
majority of the Registrable Securities, and shall enter into a customary
underwriting agreement with the investment banker(s) and manager(s).
(f) OTHER REGISTRATIONS. The Company agrees that after filing a
registration statement with respect to Registrable Securities pursuant to
SECTION 3.0 or this SECTION 4.0 that has not been withdrawn or abandoned, the
Company will not register any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities
under the Securities Act, whether on its own behalf or at the request of any
holder of those securities, until at least three months has elapsed from the
effective date of the previous registration. This three-month hiatus does
not apply to registrations of securities to be issued in connection with
employee benefit plans, to permit exercise or conversions of previously
issued options, warrants, or other convertible securities, or in connection
with a Demand Registration.
SECTION 5.0. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY SECURITIES HOLDERS. Each
holder of Registrable Securities whose securities are included in a
registration statement agrees not to make any public sale or distribution of
equity securities of the Company (except as part of the underwritten
registration), including a sale pursuant to Rule 144 under the Securities
Act, during the seven days prior to and the 90 days after the effective date
of any underwritten Demand Registration or any underwritten, Piggyback
Registration (or such longer period not to exceed 180 days as the
Underwriters may require) unless the managing underwriters agree otherwise.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees not to make any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for its equity securities, including a sale under Regulation D of the SEC or
under any exemption of the Securities Act (except as part of the underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
during the seven days prior to and the 90 days after the effective date of
any underwritten Demand Registration or any underwritten Piggyback
Registration unless the managing underwriters agree otherwise. The Company
also agrees to use its reasonable best efforts to cause each holder of its
privately placed equity securities, or any securities convertible into or
exchangeable or exercisable for its equity securities (other than Registrable
Securities), purchased from the Company at any time on or after the date of
this Agreement to agree not to make any public sale or distribution of those
securities, including a sale pursuant to Rule 144 (except as part of the
underwritten
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registration, if permitted), during the seven days prior to and the 90 days
after the effective date of the registration unless the managing underwriters
agree otherwise.
SECTION 6.0. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities request the
registration of any Registrable Securities pursuant to this Agreement, the
Company shall use its reasonable best efforts to register and to permit the
sale of the Registrable Securities in accordance with the intended method of
disposition. To carry out this obligation, the Company shall:
(1) prepare and file with the SEC, no later than 90 days after
receipt of a request to file a registration statement (subject to
SECTION 3(f)), a registration statement on the appropriate form and
use its reasonable best efforts to cause the registration statement
to become effective. At least ten days before filing a registration
statement or prospectus or at least three business days before filing
any amendments or supplements thereto, the Company will furnish to
the counsel of the holders of a majority of the Registrable
Securities being registered copies of all documents proposed to be
filed for that counsel's review and approval, which approval shall
not be unreasonably withheld or delayed;
(2) notify immediately each seller of Registrable Securities of
any stop order threatened or issued by the SEC and take all actions
reasonably required to prevent the entry of a stop order or if
entered to have it rescinded or otherwise removed;
(3) prepare and file with the SEC such amendments and
supplements to the registration statement and the corresponding
prospectus necessary to keep the registration statement effective
for 90 days or such shorter period as may be required to sell all
Registrable Securities covered by the registration statement; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the registration statement
during each period in accordance with the sellers' intended methods
of disposition as set forth in the registration statement;
(4) furnish to each seller of the Registrable Securities a
sufficient number of copies of the registration statement, each
amendment and supplement thereto (in each case including all
exhibits), the corresponding prospectus (including each preliminary
prospectus), and such other documents as a seller may reasonably
request to facilitate the disposition of the seller's Registrable
Securities;
(5) use its reasonable best efforts to register or qualify the
Registrable Securities under securities or blue sky laws of
jurisdictions in the United States of America as any seller
reasonably requests and will do any and all other acts and
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things that may be reasonably necessary or advisable to enable the
seller to consummate the disposition of the seller's Registrable
Securities as long as the Company is not required to qualify to do
business in connection with the registration or qualification;
(6) use its reasonable best efforts to cause the Registrable
Securities covered by the registration statement to be registered
with or approved by those governmental agencies or authorities
necessary to enable each seller to consummate the disposition of its
Registrable Securities;
(7) notify each seller of Registrable Securities, at any time
when a prospectus is required to be delivered under the Securities
Act, or any event as a result of which the prospectus or any document
incorporated therein by reference contains an untrue statement of a
material fact or omits to state any material fact necessary to make
the statements therein not misleading, and will prepare a supplement
or amendment to the prospectus or any such document incorporated
therein by reference so that thereafter the prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(8) cause all registered Registrable Securities to be listed on
each securities exchange, if any, on which similar securities issued
by the Company are then listed;
(9) provide an institutional transfer agent and registrar and a
CUSIP number for all Registrable Securities on or before the
effective date of the registration statement;
(10) enter into such customary agreements (including an
underwriting agreement in customary form) and take all other actions
in connection with those agreements as the holders of the Registrable
Securities being registered or the underwriters, if any, reasonably
request to expedite or facilitate the disposition of the Registrable
Securities;
(11) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant
to the registration statement, and any attorney, accountant, or other
agent of any seller or underwriter, all financial and other records,
pertinent corporate documents, and properties of the Company, and
cause the Company's officers, directors, and employees to supply all
information reasonably requested by any seller, underwriter, attorney,
accountant, or agent in connection with the registration statement;
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(12) obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering those
matters customarily covered by "cold comfort" letters as the holders
of the Registrable Securities being registered or the managing
underwriters reasonably request (and the letter shall be addressed to
holders of the Registrable Securities);
(13) furnish, at the request of any holder of Registrable
Securities being registered an opinion of the counsel representing
the Company for the purposes of the registration, in the form and
substance customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the holders
of Registrable Securities being registered; and
(14) use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement complying with the provisions of Section 11(a) of the
Securities Act and covering the period of at least twelve months,
but not more than eighteen months, beginning with the first month
after the effective date of the Registration Statement.
(b) From time to time, the Company may require each seller of
Registrable Securities subject to the registration to furnish to the Company
information regarding the distribution of the securities subject to the
registration.
(c) Each holder of Registrable Securities agrees by acquisition of
those securities that, upon receipt of any notice from the Company of any
event of the kind being described in SECTION 6.0(a)(7), the holder will
discontinue disposition of Registrable Securities until the holder receives
copies of the supplemented or amended prospectus contemplated by
SECTION 6.0 (a)(7). In addition, if the Company requests, the holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the holder's possession, of the prospectus
covering the Registrable Securities current at the time of receipt of the
notice. If the Company gives any such notice, the time period mentioned in
SECTION 6.0(a)(3) shall be extended by the number of days elapsing between
the date of notice and the date that each seller receives the copies of the
supplemented or amended prospectus contemplated by SECTION 6.0(a)(3).
SECTION 7.0. REGISTRATION EXPENSES.
(a) All Registration Expenses incident to the Company's
performance of or compliance with this Agreement shall be paid as provided in
this Agreement. As used in this Agreement, the term "Registration Expenses"
includes without limitation all registration filing fees, professional fees,
and other expenses of compliance with federal, state, and other securities
laws (including fees and disbursements of counsel for the underwriters in
connection with state or other securities law qualifications and
registrations); printing expenses, messenger, telephone, and
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delivery expenses; fees and disbursements of counsel for the Company and for
the sellers of the Registrable Securities (subject to the provisions of
SECTION 7.0(b)); fees and disbursements of all independent certified public
accountants (including the expenses of any audit or "cold comfort" letters
required by or incident to performance of the obligations contemplated by
this Agreement); fees and expenses of the underwriters (excluding discounts
and commissions but including liability insurance if the Company so desires
or if the underwriters so require); fees and expenses of any special experts
retained by the Company at the request of the managing underwriters in
connection with the registration; and fees and expenses of other Persons
retained by the Company. The term "Registration Expenses" does not include
the Company's internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit, and the fees and expenses incurred
in connection with the listing of the securities to be registered on each
securities exchange on which similar securities issued by the Company are
then listed, all of which shall be paid by the Company.
(b) In connection with each registration for which the Company is
required to pay the Registration Expenses of the holders of Registrable
Securities, the Company will promptly reimburse those holders for the
reasonable fees and disbursements of one law firm, selected by the holders of
a majority of the Registrable Securities, to serve as counsel to all the
holders.
(c) To the extent the Company is not required to pay Registration
Expenses, each holder of securities included in any registration will pay
those Registration Expenses allocable to the holder's securities so included,
and any Registration Expenses not allocable will be borne by all sellers in
proportion to the number of securities each registers.
SECTION 8.0. INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. To the full extent permitted by
law, the Company agrees to indemnify each holder of Registrable Securities,
its officers and directors, and each Person who controls the holder (within
the meaning of the Securities Act and the Exchange Act) against all losses,
claims, damages, liabilities, and expenses caused by any untrue or allegedly
untrue statement of material fact contained in any registration statement,
prospectus, or preliminary prospectus or any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except to the extent the untrue statement
or omission resulted from information that the holder furnished in writing to
the Company expressly for use therein or by the holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto to any purchaser after the Company has furnished the
holder with a sufficient number of copies of the relevant documents. In
connection with a firm or best efforts underwritten offering, to the extent
required by the managing underwriters, the Company will indemnify the
underwriters, their officers and directors, and each Person who controls the
underwriters (within the meaning of the Securities Act and the Exchange Act).
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(b) INDEMNIFICATION BY HOLDERS OF SECURITIES. In connection with
any registration statement, each participating holder of Registrable
Securities will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
registration statement or prospectus and each holder agrees to indemnify, to
the extent permitted by law, the Company, its directors and officers, and
each Person who controls the Company (within the meaning of the Securities
Act and the Exchange Act) against any losses, claims, damages, liabilities,
and expenses resulting from any untrue or allegedly untrue statement of a
material fact or any omission or alleged omission of a material fact required
to be stated in the registration statement or prospectus or any amendment
thereof or supplement thereto necessary to make the statements therein not
misleading, but only to the extent that the untrue statement or omission is
contained in or omitted from any information or affidavit the holder
furnished in writings, or resulting from the holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto to any purchaser after the Company has furnished the
holder with a sufficient number of copies of the relevant documents.
(c) INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification under this Agreement will (1) give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (2) unless in the indemnified party's reasonable judgment
a conflict of interest may exist between the indemnified and indemnifying
parties with respect to the claim, permit the indemnifying party to assume
the defense of the claim with counsel reasonably satisfactory to the
indemnified party. If the indemnifying party does not assume the defense,
the indemnifying party will not be liable for any settlement made without its
consent (but that consent may not be unreasonably withheld). No indemnifying
party will consent to entry of any judgment or will enter into any settlement
that does not include as an unconditional term the claimant's or plaintiff's
release of the indemnified party from all liability concerning the claim or
litigation. An indemnifying party who is not entitled to or elects not to
assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by the
indemnifying party with respect to the claim, unless in the reasonable
judgment of any indemnified party and any other indemnified party with
respect to the claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of additional counsel.
SECTION 9.0. RULE 144 AND RULE 144A.
(a) If the Company files a registration statement pursuant to the
requirements of the Securities Act or Section 12 of the Exchange Act, the
Company covenants that it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Company is not required to file
such reports, it will, upon the request of any holder of Registrable
Securities, make publicly available other information), and it will take such
further action as any holder of Registrable Securities reasonably may
request, all to the extent required from time to time, to enable the holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act as amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder
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of Registrable Securities, the Company will deliver to the holder a written
statement as to whether it has complied with the Rule 144 or any successor
rule requirements. The Company also covenants that it will provide all such
information and it will take such further action as any holder of Registrable
Securities reasonably may request to enable the holder to sell Registrable
Securities without registration under the Securities Act within the
limitation of Rule 144A under the Securities Act, as amended from time to
time, or any successor rule requirements.
(b) If any proposed sale of Registrable Securities may be effected
by the holders thereof pursuant to Rule 144(k) without any adverse effect on
the proposed sale, including without limitation the contemplated sale price
or the quantity of Registrable Securities to be sold, then the holders of the
Registrable Securities covenant to rely upon Rule 144(k) in the sale thereof
in lieu of requesting a Demand Registration; provided, however, the holders
of Registrable Securities shall not be obligated to take any action so that
they are eligible to use or rely upon Rule 144(k) in connection with any sale
or distribution.
SECTION 10.0. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No
Person may participate in any underwritten registration without (a) agreeing
to sell securities on the basis provided in any properly approved
underwriting arrangements and (b) completing and executing all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents required by the underwriting arrangements.
SECTION 11.0. MISCELLANEOUS.
(a) ADJUSTMENTS AFFECTING SECURITIES. The Company will not take
any action, or permit any change to occur, with respect to the Registrable
Securities that would affect adversely the ability of the holders to include
those securities in a registration undertaken pursuant to this Agreement or
the marketability of the Registrable Securities in any registration.
(b) AMENDMENT. This Agreement may be amended or modified only by
a written agreement executed by the Company and the holders of a majority of
the Registrable Securities then issued and outstanding.
(c) ATTORNEYS' FEES. In any legal action or proceeding brought to
enforce any provision of this Agreement, the prevailing party shall be
entitled to recover all reasonable expenses, charges, court costs, and
attorneys' fees in addition to any other available remedy at law or in equity.
(d) BENEFIT OF PARTIES; ASSIGNMENT. All of the terms and
provisions of this Agreement shall be binding on and inure to the benefit of
the parties and their respective successors and assigns, including without
limitation all subsequent holders of securities entitled to the benefits of
this Agreement provided, however, the Company may not transfer or assign its
rights or obligations under his Agreement.
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(e) CAPTIONS. The captions of the sections and subsections of
this Agreement are solely for convenient reference and shall not be deemed to
affect the meaning or interpretation of any provision of this Agreement.
(f) COOPERATION. The parties agree that after execution of this
Agreement they will from time to time, upon the request of any other party
and without further consideration, execute, acknowledge, and deliver in
proper form any further instruments and take such other action as any other
party may reasonably require to carry out effectively the intent of this
Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
(h) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter of this
Agreement. There are no promises, covenants, or undertakings other than
those expressly set forth or provided for in this Agreement.
(i) NO INCONSISTENT AGREEMENTS. Except with the prior written
consent of the holders of a majority of the Registrable Securities then
issued and outstanding, the Company will not enter into any agreement with
respect to its securities that shall grant to any Person registration rights
that are senior to, are in conflict with, or will interfere with the
practical realization of the rights provided under this Agreement.
(j) NOTICES. All notices, requests, demands, or other
communications that are required or may be given pursuant to the terms of
this Agreement shall be in writing and delivery shall be deemed sufficient in
all respects and to have been duly given on the date of service if delivered
personally to the party to whom notice is to be given, or on the third day
after mailing if mailed by first class mail - return receipt requested,
postage prepaid, and properly addressed to the addresses set forth in the
Investment Agreement or to such other address(es) as the respective parties
hereto shall from time to time designate to the other(s) in writing.
(k) SPECIFIC PERFORMANCE. Each of the parties agrees that damages
for a breach of or default under this Agreement would be inadequate and that
in addition to all other remedies available at law or in equity the parties
and their successors and assigns shall be entitled to specific performance or
injunctive relief, or both, in the event of a breach or a threatened breach
of this Agreement.
(l) VALIDITY OF PROVISIONS. Should any part of this Agreement for
any reason be declared by any court of competent jurisdiction to be invalid,
that decision shall, not affect the validity of the remaining portion, which
shall continue in full force and effect as if this Agreement had been
executed with the invalid portion eliminated, it being the intent of the
parties that they
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would have executed the remaining portion of the Agreement without including
any part or portion that may for any reason be declared invalid.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
TOTAL CONTROL PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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/s/ ▇.▇. ▇▇▇▇▇▇
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▇. ▇. ▇▇▇▇▇▇
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