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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
January 23, 1999, by and among ▇▇▇▇▇▇▇ Technologies, Inc., a Delaware
corporation ("▇▇▇▇▇▇▇"), and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Holder").
R E C I T A L S
▇. ▇▇▇▇▇▇▇, MML Acquisition Corp., a Delaware corporation and the Holder
are parties to a Purchase and exchange Agreement dated as of January 23, 1999
(the "Exchange Agreement"), pursuant to which the Holder will exchange all of
the outstanding shares of ▇▇▇▇▇▇▇▇ Technology ("the Company") for shares of
common stock, $.10 par value, of ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ Common Stock"); and
B. This Agreement is the Registration Rights Agreement referred to in
Sections 2.2, 5.1 and 5.2 of the Exchange Agreement and, pursuant thereto, must
be entered into by the parties as a condition precedent to the consummation of
the transactions contemplated by the Exchange Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Eligible Resale Date" shall mean ten days following the date on which
▇▇▇▇▇▇▇ has filed with the SEC consolidated financial statements of ▇▇▇▇▇▇▇
including the results of operations of ▇▇▇▇▇▇▇ and the Company combined, of at
least 30 days, in accordance with Regulation S-X under the Exchange Act and SEC
releases and interpretations governing pooling-of-interests accounting treatment
in business combinations.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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"Form S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by ▇▇▇▇▇▇▇ with
the SEC.
"Holder" shall mean a holder of Registrable Securities. On the date
hereof, the Holder is the only person holding Registrable Securities.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
"Register," "registered" and "registration" shall mean and refer to a
registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such Registration
Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in Section 4.
"Registrable Securities" shall mean the shares of ▇▇▇▇▇▇▇ Common Stock
(i) issued pursuant to the Exchange Agreement, and (ii) issued as a dividend or
other distribution with respect to or in exchange for or in replacement of the
shares referenced in (i) above; provided, however, that Registrable Securities
shall not include (i) any shares of ▇▇▇▇▇▇▇ Common Stock that have previously
been sold to the public, (ii) have been sold in a private transaction (excluding
the issuance of the ▇▇▇▇▇▇▇ Common Stock pursuant to the Exchange Agreement), or
(iii) are eligible for sale to the public under Rule 144.
"Registration Statement" shall mean any registration statement of
▇▇▇▇▇▇▇ in compliance with the Securities Act that covers Registrable Securities
pursuant to the provisions of this Agreement, including, without limitation, the
Prospectus, all amendments and supplements to such Registration Statement,
including all post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or
any similar successor rule, as the same shall be in effect from time to time.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
or any similar successor rule, as the same shall be in effect from time to time.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration Statement" shall have the meaning set forth in Section
2(a) hereof.
2. Form S-3 Registration.
(a) As soon as practicable, but no later than 20 days, following the
Eligible Resale Date, ▇▇▇▇▇▇▇ shall file a Registration Statement on Form S-3
providing for the sale pursuant to Rule 415 (a "Shelf Registration Statement"),
and/or any similar rule that may be adopted by the SEC, of Registrable
Securities by Holder. ▇▇▇▇▇▇▇ shall use reasonable efforts to provide 10 days'
notice to the Holder at the Company's address of the anticipated filing date of
a Shelf Registration Statement under this Section 2(a), and such notice shall
request all information required from Holder to participate in the Shelf
Registration Statement so that Holder may participate in such registration.
After the Registration Statement has become effective, ▇▇▇▇▇▇▇ shall use
commercially reasonable efforts to keep such Registration Statement continuously
effective for 120 days.
(b) ▇▇▇▇▇▇▇ shall not have the obligation to register securities under this
Agreement unless Holder provides and/or confirms in writing prior to or after
the filing of the Registration Statement such information (including, without
limitation, information as to the number of Registrable Securities that Holder
has sold pursuant to any such Registration Statement from time to time) as
▇▇▇▇▇▇▇ reasonably requests in connection with such Registration Statement.
(c) Notwithstanding the foregoing, for a period not to exceed 90 days in
any 12-month period, ▇▇▇▇▇▇▇ shall not be obligated to prepare and file, or be
prevented from delaying or abandoning, the Registration Statement required
hereunder if ▇▇▇▇▇▇▇, in its good faith judgment, reasonably believes that the
filing or maintenance of such Registration Statement would require the
disclosure of material non-public information regarding ▇▇▇▇▇▇▇ and,
accordingly, that the filing thereof, at the time requested, or the offering of
▇▇▇▇▇▇▇ Common Stock pursuant thereto, would materially and adversely affect (A)
a pending or scheduled public offering or private placement of securities of
▇▇▇▇▇▇▇ or any of its subsidiaries, (B) an acquisition, merger, consolidation or
similar transaction by or of ▇▇▇▇▇▇▇ or any of its subsidiaries, (C) preexisting
and continuing negotiations, discussions or pending proposals with respect to
any of the foregoing transactions, or (D) the financial condition of ▇▇▇▇▇▇▇ in
view of the disclosure of any pending or threatened litigation, claim,
assessment or governmental investigation which might be required thereby. The
reason for such delay shall be confirmed by a certificate of ▇▇▇▇▇▇▇'▇ Chairman
or President, subject to
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confidentiality restrictions, and no such delay shall shorten the 120-day
effective period of such Registration Statement once it is filed and declared
effective.
In the event that ▇▇▇▇▇▇▇, in good faith, reasonably believes that
such conditions are continuing after such 90-day period, it may, with the
consent of Holder, which consent shall not be unreasonably withheld, extend such
90-day period for an additional 30 days. Any further delay shall require the
consent of Holder.
3. Registration Procedures. In connection with ▇▇▇▇▇▇▇'▇ registration
obligations pursuant to Section 2 hereof, ▇▇▇▇▇▇▇ will use its diligent efforts
to effect such registration to permit the sale of the Registrable Securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto ▇▇▇▇▇▇▇ will:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its diligent efforts to cause
such Registration Statement to become effective; provided that, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, ▇▇▇▇▇▇▇ will use reasonable efforts to furnish to Holder and his
counsel, copies of all such documents proposed to be filed at least twenty days
prior thereto, and ▇▇▇▇▇▇▇ will not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which Holder
shall reasonably object within such twenty day period; provided, further, that
▇▇▇▇▇▇▇ will not name or otherwise provide any information with respect to
Holder in any Registration Statement or Prospectus without the express written
consent of Holder, unless required to do so by the Securities Act and the rules
and regulations thereunder;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus as
may be necessary to comply with the provisions of the Securities Act and the
rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) promptly notify Holder (i) when the Registration Statement,
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the receipt by ▇▇▇▇▇▇▇ of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (v) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
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requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading in light of the circumstances then existing;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) furnish to Holder, without charge, at least one conformed copy of
the Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(f) deliver to Holder, without charge, such reasonable number of
conformed copies of the Registration Statement (and any post-effective amendment
thereto) and such number of copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto (and any documents
incorporated by reference therein) as Holder may reasonably request; ▇▇▇▇▇▇▇
consents to the use of the Prospectus or any amendment or supplement thereto by
Holder in connection with the offer and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(g) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with Holder in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as Holder reasonably requests, and use its reasonable efforts to keep each such
registration or qualification effective, including through new filings, or
amendments or renewals, during the period such Registration Statement is
required to be kept effective pursuant to the terms of this Agreement; and do
any and all other acts or things necessary or advisable to enable the
disposition in all such jurisdictions reasonably requested by Holder of the
Registrable Securities covered by such Registration Statement, provided that
under no circumstances shall ▇▇▇▇▇▇▇ be required in connection therewith or as a
condition thereof to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(h) cooperate with Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, free of
any and all restrictive legends, such certificates to be in such denominations
and registered in such names as Holder may request;
(i) upon the occurrence of any event contemplated by Section 3(c)(v)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the Prospectus or any document incorporated therein by reference or
file any other required
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document so that, as thereafter delivered to the purchasers of the Registrable
Securities, 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, in light of the circumstances under which they were made, not
misleading;
(j) make generally available to the holders of ▇▇▇▇▇▇▇'▇ outstanding
securities earnings statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than 60 days after the end of any 12 month period (or
90 days, if such period is a fiscal year) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering, or, if not sold to underwriters in
such an offering, (ii) beginning with the first month of ▇▇▇▇▇▇▇'▇ first fiscal
quarter commencing after the effective date of the Registration Statement, which
statements shall cover said 12 month period;
(k) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by each Registration Statement from and
after a date not later than the effective date of such Registration Statement;
(l) use its best efforts to cause all Registrable Securities covered
by each Registration Statement to be listed, subject to notice of issuance,
prior to the date of the first sale of such Registrable Securities pursuant to
such Registration Statement, on each securities exchange on which the ▇▇▇▇▇▇▇
Common Stock is then listed, and admitted to trading on the Nasdaq National
Market, if the ▇▇▇▇▇▇▇ Common Stock is then admitted to trading on the Nasdaq
National Market;
(m) enter into such agreements (including underwriting agreements in
customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as Holder shall reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities;
and
(n) cooperate with Holder and the managing underwriter or underwriters
in their marketing efforts with respect to the sale of the Registrable
Securities, including participation by ▇▇▇▇▇▇▇ management in "road show"
presentations.
Holder agrees that, upon receipt of any notice from ▇▇▇▇▇▇▇ of the happening of
any event of the kind described in Section 3(c)(v) hereof, Holder will forthwith
discontinue disposition of Registrable Securities under the Prospectus related
to the applicable Registration Statement until Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof, or
until it is advised in writing by ▇▇▇▇▇▇▇ that the use of the Prospectus may be
resumed. It shall be a condition precedent to the obligations of ▇▇▇▇▇▇▇ to take
any action pursuant to this Section 3 with respect to the Registrable Securities
of Holder that Holder shall furnish to ▇▇▇▇▇▇▇, upon reasonable request by
▇▇▇▇▇▇▇, such information
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regarding himself and the Registrable Securities held by him as shall be
required by the Securities Act to effect the registration of Holder's
Registrable Securities.
4. Registration Expenses. All expenses incident to any registration to be
effected hereunder and incident to ▇▇▇▇▇▇▇'▇ performance of or compliance with
this Agreement, including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, National Association of Securities
Dealers, Inc., stock exchange and qualification fees, fees and disbursements of
▇▇▇▇▇▇▇'▇ counsel and of independent certified public accountants of ▇▇▇▇▇▇▇
(including the expenses of any special audit required by or incident to such
performance), the fees of one counsel and one accountant representing Holder in
such offering, expenses of any underwriters that are customarily requested in
similar circumstances by such underwriters (excluding discounts, commissions or
fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Registrable
Securities, which will be borne by Holder), all such expenses being herein
called "Registration Expenses," will be borne by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ will also pay
its internal expenses, the expense of any annual audit and the fees and expenses
of any person retained by ▇▇▇▇▇▇▇.
5. Holder's Covenants. Holder covenants and agrees:
(a) To sell all Registrable Securities only through a broker-dealer
approved by ▇▇▇▇▇▇▇ in writing, which approval shall not be unreasonably delayed
or withheld; and
(b) During the time the Registration Statement filed pursuant to
Section 2(a) or 2(b) is effective, Holder shall not sell more than 10% of his
Registrable Securities on any one trading day, or more than 25% of his
Registrable Securities in any five consecutive trading days. Holder understands
and agrees these manner of sale requirements are entered into for the benefit of
▇▇▇▇▇▇▇.
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6. Indemnification.
(a) Indemnification by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ agrees to indemnify and hold
harmless Holder, partners and employees from and against any and all losses,
claims, damages and liabilities (including any investigation, legal or other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted)
(collectively, "Damages") to which Holder may become subject under the
Securities Act, the Exchange Act or other federal or state securities law or
regulation, at common law or otherwise, insofar as such Damages arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or any amendment or supplement thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (iii) any violation or alleged
violation by ▇▇▇▇▇▇▇ of the Securities Act, the Exchange Act or any state
securities or blue sky laws in connection with the Registration Statement,
Prospectus or preliminary prospectus or any amendment or supplement thereto,
provided that ▇▇▇▇▇▇▇ will not be liable to Holder to the extent that such
Damages arise from or are based upon any untrue statement or omission (x) based
upon written information furnished to ▇▇▇▇▇▇▇ by Holder expressly for the
inclusion in such Registration Statement, (y) made in any preliminary prospectus
if Holder failed to deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by Holder to the party asserting
the claim underlying such Damages and such Prospectus would have corrected such
untrue statement or omission and (z) made in any Prospectus if such untrue
statement or omission was corrected in an amendment or supplement to such
Prospectus and Holder failed to deliver such amendment or supplement prior to or
concurrently with the sale of Registrable Securities to the party asserting the
claim underlying such Damages.
(b) Indemnification by Holder. Holder agrees to indemnify and hold
harmless ▇▇▇▇▇▇▇, its directors and each officer who signed such Registration
Statement and each person who controls ▇▇▇▇▇▇▇ (within the meaning of Section 15
of the Securities Act), under the same circumstances as the foregoing indemnity
from ▇▇▇▇▇▇▇ to Holder to the extent that such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement of a
material fact or omission of a material fact that was made in the Prospectus,
the Registration Statement, or any amendment or supplement thereto, in reliance
upon and in conformity with information relating to Holder furnished in writing
to ▇▇▇▇▇▇▇ by Holder expressly for use therein, provided that in no event shall
the aggregate liability of Holder exceed the amount of the net proceeds received
by Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. ▇▇▇▇▇▇▇ and Holder shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as customarily furnished by such persons in similar circumstances.
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(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person and not of the
indemnifying party unless (A) the indemnifying party has agreed to pay such fees
or expenses, (B) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such person or (C)
in the reasonable judgment of such person and the indemnifying party, based upon
written advice of their respective counsel, a conflict of interest may exist
between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person). If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld). No indemnified party will be required to consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by all claimants or plaintiffs to such
indemnified party of a release from all liability in respect to such claim or
litigation. Any 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 such indemnifying party
with respect to such claim. As used in this Section 6(c), the terms
"indemnifying party", "indemnified party" and other terms of similar import are
intended to include only ▇▇▇▇▇▇▇ (and its officers, directors and control
persons as set forth above) on the one hand, and Holder (and his partners,
employees, attorneys and control persons as set forth above) on the other hand,
as applicable.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other but
also the relative fault of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, Holder shall not be required to contribute any amount in excess of
the amount Holder would have been required to pay to an indemnified party if the
indemnity under
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Section 6(b) hereof was available. 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. The obligation of any person to contribute
pursuant to this Section 6(d) shall be several and not joint.
(e) Timing of Payments. An indemnifying party shall make payments of
all amounts required to be made pursuant to the foregoing provisions of this
Section 6 to or for the account of the indemnified party from time to time
promptly upon receipt of bills or invoices relating thereto or when otherwise
due or payable.
(f) Survival. The indemnity and contribution agreements contained in
this Section 6 shall remain in full force and effect, regardless of any
investigation made by or on behalf of Holder, and shall survive the transfer of
such Registrable Securities by Holder.
7. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of this
Agreement:
(a) ▇▇▇▇▇▇▇ shall, with respect to a Registration Statement filed
pursuant to Section 2, give Holder, his underwriters, if any, and their
respective counsel and accountants the opportunity to participate in the
preparation of such Registration Statement (other than reports and proxy
statements incorporated therein by reference and lawfully and properly filed
with the SEC) and each Prospectus included therein or filed with the SEC, and
each amendment thereof or supplement thereto; and
(b) ▇▇▇▇▇▇▇ shall give Holder, his underwriters, if any, and their
respective counsel and accountants such reasonable access to its books and
records and such opportunities to discuss the business of ▇▇▇▇▇▇▇ with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of Holder or such underwriters,
to conduct a reasonable investigation within the meaning of Section 11(b)(3) of
the Securities Act.
8. Rule 144. ▇▇▇▇▇▇▇ covenants that it will use commercially reasonable
efforts to file, on a timely basis, 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, and it will take such further action as Holder may
reasonably request (including, without limitation, compliance with the current
public information requirements of Rule 144(c) and Rule 144A), all to the extent
required from time to time to enable Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
conditions provided by Rule 144, or any similar rule or regulation hereafter
adopted by the SEC. Upon the request of Holder, Maxwell will deliver to Holder a
written statement, signed by the Chairman or President of ▇▇▇▇▇▇▇, verifying
that it has complied with such information and requirements.
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9. Specific Performance. Holder, in addition to being entitled to exercise
all rights provided herein or granted by law, including recovery of damages,
will be entitled to specific performance of his rights under this Agreement.
▇▇▇▇▇▇▇ agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed, postage prepaid, sent by
facsimile or delivered personally by hand or nationally recognized courier
addressed (a) if to Holder, at the address of the Company, or at such other
address as Holder or permitted assignee shall have furnished to ▇▇▇▇▇▇▇ in
writing, (b) if to ▇▇▇▇▇▇▇, at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, or such other address
provided to Holder in writing. All such notices and other written communications
shall be effective on the date of mailing, facsimile transfer or delivery.
11. Successors and Assigns: Assignment of Rights. The rights and benefits
of Holder hereunder may not be assigned to a transferee or assignee, without the
consent of ▇▇▇▇▇▇▇; provided, however, that, no later than the 10th day prior to
the filing of the Registration Statement under Section 2 hereof, the rights and
benefits of Holder hereunder may be transferred in connection with a transfer or
assignment of any Registrable Securities held by Holder (i) by gift to immediate
family members of Holder, or trusts or other entities for the sole benefit
thereof, or (ii) by gift to any entity in which Holder, his or her immediate
family members, or trusts or other entities for the sole benefit thereof
beneficially own all of the voting securities; provided, however, that in each
case, the transferee executes an instrument pursuant to which the transferee
agrees to be bound by the terms and conditions hereof as a Holder, and such
other documents related to the Exchange Agreement as ▇▇▇▇▇▇▇ or its counsel may
reasonably require, after which, such transferee shall be deemed a "Holder"
hereunder. Any transfer of Registrable Securities, and rights hereunder, shall
be subject to compliance with applicable securities laws and the restrictions
contained in the Agreement.
12. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
13. Entire Agreement; Amendment; Waiver. This Agreement, the Exchange
Agreement and the other agreements contemplated thereby constitute the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof. Without limiting the foregoing, the rights of Holder to
registration pursuant to the terms of this Agreement shall be subject to the
limitations on resale contained in Exchange Agreement.
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12
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by ▇▇▇▇▇▇▇ and the holders of
at least 51% of the Registrable Securities and any such amendment, waiver,
discharge or termination shall be binding upon all the parties hereto, but in no
event shall the obligation of any party hereto be materially increased, except
upon the written consent of such party.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
15. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to principles of conflicts of laws thereof.
16. No Third Party Beneficiaries. The covenants and agreements set forth
herein are for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and such covenants and agreements shall not be
construed as conferring, and are not intended to confer, any rights or benefits
upon any other persons.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
HOLDER:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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SCHEDULE OF AFFILIATED HOLDERS
SCHEDULE A
Holder's Name/Address/Telecopier No. Number of Shares of ▇▇▇▇▇▇▇ Common Stock Issued
Pursuant
to the Merger Agreement
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SCHEDULE OF AFFILIATED HOLDERS
SCHEDULE B
Holder's Name/Address/Telecopier No. Number of Shares of ▇▇▇▇▇▇▇ Common Stock Issued
Pursuant
to the Merger Agreement
------------------------------------------------------- -------------------------------------------------
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