AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, as amended and
restated as of January 31, 1996 among ▇▇▇▇▇▇, Inc., a
Delaware corporation (the "Company"), and the other
undersigned parties hereto.
1. Introduction. Pursuant to the Securities
Purchase Agreement (the "Securities Purchase Agreement"),
dated as of August 1, 1994, between Wand/▇▇▇▇▇▇
Investments L.P., a Delaware limited partnership (the
"Wand/▇▇▇▇▇▇ I Partnership"), and the Company, on August
1, 1994, the Company issued 1,500 shares of its Series C
Convertible Preferred Stock, par value $1.00 per share
(the "Series C Preferred Stock"), and Common Stock
Purchase Warrants to purchase 1,000,000 shares of the
Company's common stock, par value $.01 per share (the
"Common Stock"), to the Wand/▇▇▇▇▇▇ I Partnership.
Simultaneously with the Closing of the Securities
Purchase Agreement, Wand Partners L.P. and Hill &
Partners were issued Common Stock Purchase Warrants to
purchase an aggregate of 400,000 shares of Common Stock
pursuant to the Letter of Engagement, dated as of April
26, 1994, among the Company, Wand Partners Inc. and Hill
& Partners (the "Letter of Engagement"). This Agreement
became effective upon the issuance of such securities to
such parties pursuant to the Securities Purchase
Agreement and the Letter of Engagement. Pursuant to the
First Amended and Restated Standby Financing and Purchase
Agreement, dated as of June 30, 1995, between the
Wand/▇▇▇▇▇▇ I Partnership and the Company, the Company
issued to the Wand/▇▇▇▇▇▇ I Partnership and to
Wand/▇▇▇▇▇▇ Investments II L.P., a Delaware limited
partnership (the "Wand/▇▇▇▇▇▇ ▇▇ Partnership") in the
aggregate (i) an additional 1,970 shares of Series C
Preferred Stock, (ii) 100,000 shares of the Company's
Common Stock as a commitment fee, (iii) 78,198 shares of
Common Stock as payment of interest pursuant to the
Company's four Promissory Notes in the aggregate original
principal amount of $1,700,000, (iv) Common Stock
Purchase Warrants to purchase 700,000 shares of Common
Stock at $1.00 per share as a takedown fee, (v) in
substitution for, and upon cancellation of, the Common
Stock Purchase Warrant issued in August 1994 pursuant to
the Securities Purchase Agreement, a Common Stock
Purchase Warrant to purchase 1,000,000 shares of Common
Stock at a reduced exercise price of $.65, and (vi)
20,000 shares of the Company's Series D Convertible
Preferred Stock, par value $1.00 per share ("Series D
Preferred Stock") and Warrants to purchase 10,000 shares
of Company Common Stock at an exercise price of $2.00 per
share (the "Rights Warrants") issued in connection with
the Company's Rights Offering made pursuant to an S-2
Registration Statement declared effective August 16,
1995. Pursuant to the Securities Purchase and Exchange
Agreement dated as of January 31, 1996 among the Company
and the three Wand/▇▇▇▇▇▇ Partnerships (the "Purchase and
Exchange Agreement"), the Company has agreed (i) to
issue an aggregate of 599 shares of Series F Convertible
Preferred Stock, par value/$1.00 per share (the"Series F
Preferred Stock") of the Company and related Common Stock
Purchase Warrants to purchase 173,710 shares of Common
Stock at an initial exercise price of $1.25 to the
Wand/▇▇▇▇▇▇ I Partnership and the Wand ▇▇▇▇▇▇ ▇▇
Partnership, (ii) to issue an aggregate of 401 shares of
Series G Convertible Preferred Stock, par value $1.00 per
share (the"Series G Preferred Stock") of the Company and
related Common Stock Purchase Warrants to purchase
116,290 shares of Common Stock at an initial exercise
price of $1.25 to Wand/▇▇▇▇▇▇ Investments III L.P., a
Delaware limited partnership (the "Wand/▇▇▇▇▇▇ III
Partnership"), (iii) to transfer certain of the Company
securities previously acquired by the Wand/▇▇▇▇▇▇ I
Partnership to the Wand/▇▇▇▇▇▇ III Partnership, (iv) to
issue an aggregate of 2,026 shares of Series H
Convertible Preferred Stock, par value/$1.00 per share
(the"Series H Preferred Stock") of the Company to the
Wand/▇▇▇▇▇▇ I Partnership and the Wand ▇▇▇▇▇▇ ▇▇
Partnership upon cancellation of the Series C Preferred
Stock held by such partnerships, (v) to issue an
aggregate of 1,444 shares of Series E Convertible
Preferred Stock, par value $1.00 per share (the"Series E
Preferred Stock") of the Company to the Wand/▇▇▇▇▇▇ III
Partnership upon cancellation of the Series C Preferred
Stock held by such partnership, and (vi) to revise the
Common Stock Purchase Warrants transferred to the
Wand/▇▇▇▇▇▇ III Partnership to add certain restrictions
on their exercise and transfer. Certain capitalized
terms used in this Agreement are defined in section 3
hereof; references to sections shall be to sections of
this agreement.
2. Registration under Securities Act, etc.
2.1 Registration on Request.
(a) Request. At any time or from time
to time after August 1, 1997, upon the written request
of one or more Initiating Holders, requesting that the
Company effect the registration under the Securities Act
of all or part of such Initiating Holders' Registrable
Securities and specifying the intended method of
disposition thereof, the Company will promptly give
written notice of such requested registration to all
registered holders of Registrable Securities, and
thereupon the Company will, subject to the terms of this
Agreement, effect the registration under the Securities
Act of:
(i) the Registrable Securities
which the Company has been so requested to register
by such Initiating Holders for disposition in
accordance with the intended method of disposition
stated in such request;
(ii) all other Registrable
Securities the holders of which shall have made a
written request to the Company for registration
thereof within 30 days after the giving of such
written notice by the Company (which request shall
specify the intended method of disposition of such
Registrable Securities);
(iii) all other shares of Common
Stock which the Company may elect to register in
connection with the offering of Registrable
Securities pursuant to this section 2.1,
all to the extent requisite to permit the disposition
(in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities and the
additional shares of Common Stock, if any so to be
registered. The Company's obligations pursuant to this
Section 2.1(a) shall cease after two such requested
registrations shall have been effected in which all of
the Registrable Securities requested to be included in
such registration by any holders of Registrable
Securities shall have been registered.
(b) Registration Statement Form.
Registrations under this section 2.1 shall be on such
appropriate registration form of the Commission (i) as
shall be selected by the Company and the holders of more
than 50% (by number of shares) of the Registrable
Securities so to be registered and (ii) as shall permit
the disposition of such Registrable Securities in
accordance with the intended method or methods of
disposition specified in their request for such
registration. If, in connection with any registration
under section 2.1 which is proposed by the Company to be
on Form S-3 or any similar short form registration
statement which is a successor to Form S-3, the managing
underwriters, if any, shall advise the Company in
writing that in their opinion the use of another
permitted form is of material importance to the success
of the offering, then such registration shall be on such
other permitted form.
(c) Expenses. The Company will pay all
Registration Expenses in connection with any
registration requested pursuant to this section 2.1 by
any Initiating Holders of Registrable Securities prior
to the time at which two such registrations shall have
been effected in which all of the Registrable
Securities requested to be included in such registration
by any holders of Registrable Securities shall have
been registered pursuant to this section 2.1.
Underwriting discounts and commissions and transfer
taxes, if any (and, when applicable, the Registration
Expenses) in connection with each registration requested
under this section 2.1 shall be allocated pro rata among
all Persons on whose behalf securities of the Company
are included in such registration, on the basis of the
respective amounts of the securities then being
registered on their behalf.
(d) Effective Registration Statement. A
registration requested pursuant to this section 2.1
shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become
effective, provided that a registration which does not
become effective after the Company has filed a
registration statement with respect thereto solely by
reason of the refusal to proceed of the Initiating
Holders (other than a refusal to proceed based upon the
advice of counsel relating to a matter with respect to
the Company) shall be deemed to have been effected by
the Company at the request of such Initiating Holders
unless the Initiating Holders shall have elected to pay
all Registration Expenses in connection with such
registration, (ii) if, after it has become effective,
such registration becomes subject to any stop order,
injunction or other order or requirement of the
Commission or other governmental agency or court for any
reason, other than by reason of some act or omission by
any Initiating Holder, or (iii) the conditions to
closing specified in the purchase agreement or
underwriting agreement entered into in connection with
such registration are not satisfied, other than by
reason of some act or omission by such Initiating
Holders.
(e) Selection of Underwriters. If a
requested registration pursuant to this section 2.1
involves an underwritten offering, the managing or lead
underwriter or underwriters thereof shall be selected by
the holders of at least a majority (by number of shares)
of the Registrable Securities as to which registration
has been requested.
(f) Priority in Requested Registrations.
If a requested registration pursuant to this section 2.1
involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting
registration) that, in its opinion, the number of
securities requested to be included in such registration
(including securities of the Company which are not
Registrable Securities) exceeds the number which can be
sold in such offering within a price range acceptable to
the holders of a majority of the Registrable Securities
so requested to be included, the Company will include in
such registration, to the extent of the number which the
Company is so advised can be sold in such offering,
first, Registrable Securities requested to be included
in such registration by the holder or holders of
Registrable Securities, pro rata among such holders
requesting such registration on the basis of the number
of such securities requested to be included by such
holders and (ii) second, securities the Company proposes
to sell and other securities of the Company included in
such registration by the holders thereof.
2.2 Incidental Registration.
(a) Right to Include Registrable
Securities. If the Company at any time proposes to
register any of its securities under the Securities Act
(other than by a registration on Form S-4 or on Form S-
8, or any successor or similar forms), whether or not
for sale for its own account, it will each such time
give prompt written notice to all holders of Registrable
Securities of its intention to do so and of such
holders' rights under this section 2.2. Upon the
written request of any such holder made within 30 days
after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be
disposed of by such holder and the intended method of
disposition thereof), the Company will, subject to the
terms of this Agreement, use its best efforts to effect
the registration under the Securities Act of all
Registrable Securities which the Company has been so
requested to register by the holders thereof, to the
extent requisite to permit the disposition (in
accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be
registered, by inclusion of such Registrable Securities
in the registration statement which covers the
securities which the Company proposes to register,
provided that if, at any time after giving written
notice of its intention to register any securities and
prior to the effective date of the registration
statement filed in connection with such registration,
the Company shall determine for any reason either not to
register or to delay registration of such securities,
the Company may, at its election, give written notice of
such determination to each holder of Registrable
Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Securities in
connection with such registration (but not from its
obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to
the rights of any holder or holders of Registrable
Securities entitled to do so to request that such
registration be effected as a registration under section
2.1, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay
in registering such other securities. No registration
effected under this section 2.2 shall relieve the
Company of its obligation to effect any registration
upon request under section 2.1, nor shall any such
registration hereunder be deemed to have been effected
pursuant to section 2.1. The Company will pay all
Registration Expenses in connection with each
registration of Registrable Securities requested
pursuant to this section 2.2.
(b) Priority in Incidental
Registrations. If (i) a registration pursuant to this
section 2.2 involves an underwritten offering of the
securities so being registered, whether or not for sale
for the account of the Company, to be distributed (on a
firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting
terms appropriate for such a transaction, (ii) the
Registrable Securities so requested to be registered for
sale for the account of holders of Registrable
Securities are not also to be included in such
underwritten offering (either because the Company has
not been requested so to include such Registrable
Securities pursuant to section 2.4(b) or, if requested
to do so, is not obligated to do so under section
2.4(b), and (iii) the managing underwriter of such
underwritten offering shall inform the Company and
holders of the Registrable Securities requesting such
registration by letter of its belief that the number of
securities requested to be included in such registration
exceeds the number which can be sold in (or during the
time of) such offering, then the Company will include in
such registration, to the extent of the number which the
Company is so advised can be sold in (or during the time
of) such offering, (a) first, securities of the Company
to be sold for its own account and (b) second ,
Registrable Securities and other securities of the
Company requested to be included in such registration
pro rata on the basis of the number of shares of such
securities so proposed to be sold and so requested to be
included.
2.3 Registration Procedures. If and whenever
(a) the Company is required to use its best efforts to
effect the registration of any Registrable Securities
under the Securities Act as provided in sections 2.1 and
2.2 or (b) there is a Requesting Holder in connection
with any other proposed registration by the Company
under the Securities Act, the Company shall, as
expeditiously as possible:
(i) prepare and (in the case of a
registration pursuant to section 2.1, such filing
to be made within 60 days after the initial request
of one or more Initiating Holders of Registrable
Securities or in any event as soon thereafter as
possible) file with the Commission the requisite
registration statement to effect such registration
(including such audited financial statements as may
be required by the Securities Act or the rules and
regulations promulgated thereunder) and thereafter
use its best efforts to cause such registration
statement to become and remain effective, provided
however that the Company may discontinue any
registration of its securities which are not
Registrable Securities (and, under the
circumstances specified in section 2.2(a), its
securities which are Registrable Securities) at any
time prior to the effective date of the
registration statement relating thereto, provided
further that before filing such registration
statement or any amendments thereto, the Company
will furnish to the counsel selected by the holders
of Registrable Securities which are to be included
in such registration copies of all such documents
proposed to be filed, which documents will be
subject to the review of such counsel;
(ii) prepare and file with the
Commission 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 and to comply
with the provisions of the Securities Act with
respect to the disposition of all securities
covered by such registration statement until the
earlier of such time as all of such securities have
been disposed of in accordance with the intended
methods of disposition by the seller or sellers
thereof set forth in such registration statement or
(i) in the case of a registration pursuant to
section 2.1, the expiration of 180 days after such
registration statement becomes effective, or (ii)
in the case of a registration pursuant to section
2.2, the expiration of 90 days after such
registration statement becomes effective;
(iii) furnish to each seller of
Registrable Securities covered by such registration
statement, and each Requesting Holder and each
underwriter, if any, of the securities being sold
by such seller, such number of conformed copies of
such registration statement and of each such
amendment and supplement thereto (in each case
including all exhibits), such number of copies of
the prospectus contained in such registration
statement (including each preliminary prospectus
and any summary prospectus) and any other
prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements
of the Securities Act, and such other documents, as
such seller and underwriter, if any, may reasonably
request in order to facilitate the public sale or
other disposition of the Registrable Securities
owned by such seller;
(iv) use its best efforts to
register or qualify all Registrable Securities and
other securities covered by such registration
statement under such other securities laws or blue
sky laws of such jurisdictions as any seller
thereof, any underwriter of the securities being
sold by such seller and any Requesting Holder shall
reasonably request, to keep such registrations or
qualifications in effect for so long as such
registration statement remains in effect, and take
any other action which may be reasonably necessary
or advisable to enable such seller and underwriter
to consummate the disposition in such jurisdictions
of the securities owned by such seller, except that
the Company shall not for any such purpose be
required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it
would not but for the requirements of this
subdivision (iv) be obligated to be so qualified
or to consent to general service of process in any
such jurisdiction;
(v) use its best efforts to cause
all Registrable Securities covered by such
registration statement to be registered with or
approved by such other governmental agencies or
authorities as may be necessary to enable the
seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) furnish to each seller of
Registrable Securities and each Requesting Holder a
signed counterpart, addressed to such seller, such
Requesting Holder and the underwriters, if any, of:
(x) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if
such registration includes an underwritten public
offering, an opinion dated the date of the closing under
the underwriting agreement), reasonably satisfactory in
form and substance to such seller, and
(y) a "comfort" letter (or, in the case of any such
Person which does not satisfy the conditions for receipt
of a "comfort" letter specified in Statement on Auditing
Standards No. 72, an "agreed upon procedures" letter),
dated the effective date of such registration statement
(and, if such registration includes an underwritten
public offering, a letter of like kind dated the date of
the closing under the underwriting agreement), signed by
the independent public accountants who have certified
the Company's financial statements included in such
registration statement,
covering substantially the same matters with
respect to such registration statement (and the
prospectus included therein) and, in the case of
the accountants' letter, with respect to events
subsequent to the date of such financial
statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten
public offerings of securities (with, in the case
of an "agreed upon procedures" letter, such
modifications or deletions as may be required under
Statement on Auditing Standards No. 35) and, in the
case of the accountants' letter, such other
financial matters, and, in the case of the legal
opinion, such other legal matters, as such seller
or such Requesting Holder (or the underwriters, if
any) may reasonably request;
(vii) notify the holders of
Registrable Securities and the managing underwriter
or underwriters, if any, promptly and confirm such
advice in writing promptly thereafter:
(v) when the registration statement, the
prospectus or any prospectus supplement related thereto
or post-effective amendment to the registration
statement has been filed, and, with respect to the
registration statement or any post-effective amendment
thereto, when the same has become effective;
(w) of any request by the Commission for
amendments or supplements to the registration statement
or the prospectus or for additional information;
(x) of the issuance by the Commission of
any stop order suspending the effectiveness of the
registration statement or the initiation of any
proceedings by any Person for that purpose;
(y) if at any time the representations
and warranties of the Company made as contemplated by
section 2.4 below cease to be true and correct;
(z) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any
proceeding for such purpose; and
(viii) notify each seller of
Registrable Securities covered by such registration
statement and each Requesting Holder, at any time
when a prospectus relating thereto is required to
be delivered under the Securities Act, upon the
Company's discovery that, or upon the happening of
any event as a result of which, the prospectus
included in such registration statement, as then in
effect, includes an untrue statement of a material
fact or omits to state any material fact required
to be stated therein or necessary to make the
statements therein not misleading in the light of
the circumstances then existing, and at the request
of any such seller or Requesting Holder promptly
prepare and furnish to such seller or Requesting
Holder and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such
securities, such prospectus shall not include an
untrue statement of a material fact or omit to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading in the light of the circumstances then
existing;
(ix) make every reasonable effort
to obtain the withdrawal of any order suspending
the effectiveness of the registration statement at
the earliest possible moment;
(x) otherwise use its best efforts
to comply with all applicable rules and regulations
of the Commission, and make available to its
security holders, as soon as reasonably
practicable, an earnings statement covering the
period of at least twelve months, but not more than
eighteen months, beginning with the first day of
the Company's first full calendar month after the
effective date of such registration statement,
which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder, and will furnish to each
such seller and each Requesting Holder at least
five business days prior to the filing thereof a
copy of any amendment or supplement to such
registration statement or prospectus and shall not
file any thereof to which any such seller or any
Requesting Holder shall have reasonably objected on
the grounds that such amendment or supplement does
not comply in all material respects with the
requirements of the Securities Act or of the rules
or regulations thereunder;
(xi) provide and cause to be
maintained a transfer agent and registrar for all
Registrable Securities covered by such registration
statement from and after a date not later than the
effective date of such registration statement;
(xii) enter into such agreements
and take such other actions as sellers of such
Registrable Securities holding 51% of the shares so
to be sold shall reasonably request in order to
expedite or facilitate the disposition of such
Registrable Securities;
(xiii) use its best efforts to list
all Registrable Securities covered by such
registration statement on any securities exchange
on which any of the securities of the same class as
the Registrable Securities are then listed;
(xiv) use its best efforts to
provide a CUSIP number for the Registrable
Securities, not later than the effective date of
the registration statement.
The Company may require each seller of Registrable
Securities as to which any registration is being
effected to furnish the Company such information
regarding such seller and the distribution of such
securities as the Company may from time to time
reasonably request in writing.
The Company will not file any registration
statement or amendment thereto or any prospectus or any
supplement thereto (including such documents
incorporated by reference and proposed to be filed after
the initial filing of the registration statement) to
which the holders of at least a majority of the
Registrable Securities covered by such registration
statement or the underwriter or underwriters, if any,
shall reasonably object, provided that the Company may
file such document in a form required by law or upon the
advice of its counsel.
Each holder of Registrable Securities agrees
that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in
subdivision (viii) of this section 2.3, such holder will
forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until
such holder's receipt of the copies of the supplemented
or amended prospectus contemplated by subdivision (viii)
of this section 2.3 and, if so directed by the Company,
will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in
such holder's possession, of the prospectus relating to
such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in paragraph
(ii) of this section 2.3 shall be extended by the length
of the period from and including the date when each
seller of any Registrable Securities covered by such
registration statement shall have received such notice
to the date on which each such seller has received the
copies of the supplemented or amended prospectus
contemplated by paragraph (viii) of this section 2.3.
If any such registration statement refers to
any holder of Registrable Securities by name or
otherwise as the holder of any securities of the
Company, then such holder shall have the right to
require (i) the insertion therein of language, in form
and substance satisfactory to such holder, to the effect
that the holding by such holder of such securities is
not to be construed as a recommendation by such holder
of the investment quality of the Company's securities
covered thereby and that such holding does not imply
that such holder will assist in meeting any future
financial requirements of the Company, or (ii) in the
event that such reference to such holder by name or
otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of
the reference to such holder.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings.
If requested by the underwriters for any underwritten
offering by holders of Registrable Securities pursuant
to a registration requested under section 2.1, the
Company will enter into an underwriting agreement with
such underwriters for such offering, such agreement to
contain such representations and warranties by the
Company and such other terms as are generally prevailing
in agreements of this type, including, without
limitation, indemnities to the effect and to the extent
provided in section 2.7. The holders of the Registrable
Securities will cooperate with the Company in the
negotiation of the underwriting agreement and will give
consideration to the reasonable suggestions of the
Company regarding the form thereof, provided that
nothing herein contained shall diminish the foregoing
obligations of the Company. The holders of Registrable
Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at
their option, require that any or all of the
representations and warranties by, and the other
agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable
Securities and that any or all of the conditions
precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to
the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities
shall not be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations and warranties
or agreements regarding such holder, such holder's
Registrable Securities and such holder's intended method
of distribution.
(b) Incidental Underwritten Offerings.
If the Company at any time proposes to register any of
its securities under the Securities Act as contemplated
by section 2.2 and such securities are to be distributed
by or through one or more underwriters, the Company
will, if requested by any holder of Registrable
Securities as provided in section 2.2 and subject to the
provisions of section 2.2(b), use its best efforts to
arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such
holder among the securities to be distributed by such
underwriters, provided that if the managing underwriter
of such underwritten offering shall inform the holders
of the Registrable Securities requesting such
registration and the holders of any other shares of
securities which shall have exercised, in respect of
such underwritten offering, registration rights
comparable to the rights under section 2.2 by letter of
its belief that inclusion in such underwritten
distribution of all or a specified number of such
Registrable Securities or of such other shares of
securities so requested to be included would interfere
with the successful marketing of the securities (other
than such Registrable Securities and other shares of
securities so requested to be included) by the
underwriters (such writing to state the basis of such
belief and the approximate number of such Registrable
Securities and shares of other securities so requested
to be included which may be included in such
underwritten offering without such effect), then the
Company may, upon written notice to all holders of such
Registrable Securities and of such other shares of
securities so requested to be included, exclude pro rata
from such underwritten offering (if and to the extent
stated by such managing underwriter to be necessary to
eliminate such effect) the number of such Registrable
Securities and shares of such other securities so
requested to be included, the registration of which
shall have been requested by each holder of Registrable
Securities and by the holders of such other securities,
so that the resultant aggregate number of such
Registrable Securities and of such other shares of
securities so requested to be included which are
included in such underwritten offering shall be equal to
the approximate number of shares stated in such managing
underwriter's letter. The holders of Registrable
Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the
Company and such underwriters and may, at their option,
require that any or all of the representations and
warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters
shall also be made to and for the benefit of such
holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such
underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders
of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any
representations or warranties to or agreements with the
Company or the underwriters other than representations,
warranties or agreements regarding such holder, such
holder's Registrable Securities, such holder's intended
method of distribution and any other representation
required by law.
(c) Holdback Agreements.
(i) Each holder of Registrable
Securities agrees by acquisition of such
Registrable Securities, if so required by the
managing underwriter, not to sell, make any short
sale of, loan, grant any option for the purchase
of, effect any public sale or distribution of or
otherwise dispose of any equity securities of the
Company, during the seven days prior to and the 90
days after any underwritten registration pursuant
to section 2.1 or 2.2 has become effective, except
as part of such underwritten registration.
Notwithstanding the foregoing sentence, each holder
of Registrable Securities subject to the foregoing
sentence shall be entitled to sell during the
foregoing period securities in a private sale.
(ii) The Company agrees (x) not to
sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale
or distribution of or otherwise dispose of its
equity securities or securities convertible into or
exchangeable or exercisable for any of such
securities during the seven days prior to and the
90 days after any underwritten registration
pursuant to section 2.1 or 2.2 has become
effective, except as part of such underwritten
registration or except in connection with a stock
option plan, stock purchase plan, managing
directors' plan, savings or similar plan, or an
acquisition of a business, merger or exchange of
stock for stock, and (y) to cause each holder of
its equity securities or any securities convertible
into or exchangeable or exercisable for any of such
securities, in each case purchased from the Company
at any time after the date of this Agreement (other
than in a public offering) to agree not to sell,
make any short sale of, loan, grant any option for
the purchase of, effect any public sale or
distribution of or otherwise dispose of such
securities during such period except as part of
such underwritten registration.
(d) Participation in Underwritten
Offerings. No Person may participate in any
underwritten offering hereunder unless such Person (i)
agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved,
subject to the terms and conditions hereof, by the
Company and the holders of a majority of Registrable
Securities to be included in such underwritten offering
and (ii) completes and executes all questionnaires,
indemnities, underwriting agreements and other documents
(other than powers of attorney) required under the terms
of such underwriting arrangements. Notwithstanding the
foregoing, no underwriting agreement (or other agreement
in connection with such offering) shall require any
holder of Registrable Securities to make any
representations or warranties to or agreements with the
Company or the underwriters other than representations
and warranties or agreements regarding such holder, such
holder's Registrable Securities, such holder's intended
method of distribution and any other representation
required by law.
2.5 Preparation; Reasonable Investigation.
In connection with the preparation and filing of each
registration statement under the Securities Act pursuant
to this Agreement, the Company will give the holders of
Registrable Securities registered under such
registration statement, their underwriters, if any, each
Requesting Holder and their respective counsel and
accountants, the opportunity to participate in the
preparation of such registration statement, each
prospectus included therein or filed with the
Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its
books and records and such opportunities to discuss the
business of the Company with its officers and the
independent public accountants who have certified its
financial statements as shall be necessary, in the
opinion of such holders' and such underwriters'
respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.6 Rights of Requesting Holders. The
Company will not file any registration statement under
the Securities Act (other than by a registration on Form
S-8), unless it shall first have given to each holder of
Registrable Securities at the time outstanding (other
than any such Person who acquired all such securities
held by such Person in a public offering registered
under the Securities Act or as the direct or indirect
transferee of shares initially issued in such an
offering), at least 30 days prior written notice
thereof. Any such Person who shall so request within 30
days after such notice (a "Requesting Holder") shall
have the rights of a Requesting Holder provided in
sections 2.3, 2.5 and 2.7. In addition, if any such
registration statement refers to any Requesting Holder
by name or otherwise as the holder of any securities of
the Company, then such holder shall have the right to
require (a) the insertion therein of language, in form
and substance satisfactory to such holder, to the effect
that the holding by such holder of such securities does
not necessarily make such holder a "controlling person"
of the Company within the meaning of the Securities Act
and is not to be construed as a recommendation by such
holder of the investment quality of the Company's debt
or equity securities covered thereby and that such
holding does not imply that such holder will assist in
meeting any future financial requirements of the
Company, or (b) in the event that such reference to such
holder by name or otherwise is not required by the
Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to such
holder.
2.7 Indemnification.
(a) Indemnification by the Company. In
the event of any registration of any securities of the
Company under the Securities Act, the Company will, and
hereby does agree to, indemnify and hold harmless (i) in
the case of any registration statement filed pursuant to
section 2.1 or 2.2, the holder of any Registrable
Securities covered by such registration statement, any
partner or affiliate of such holder, and their
respective directors, officers, stockholders, employees
and agents, each other Person who participates as an
underwriter in the offering or sale of such securities
and each other Person, if any, who controls such holder
or any such underwriter within the meaning of the
Securities Act, and (ii) in the case of any,
registration statement of the Company, any Requesting
Holder, any partner or affiliate of such Requesting
Holder, each other Person, if any, who controls such
Requesting Holder within the meaning of the Securities
Act, and their respective directors, officers,
stockholders, employees and agents, against any losses,
claims, damages or liabilities, joint or several, to
which such holder or Requesting Holder or any such
partner, affiliate, director, officer, stockholder,
employee, agent or underwriter or controlling person may
become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities
(or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue
statement of any material fact contained in any
registration statement under which such securities were
registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement
thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and the Company will reimburse such holder, such
Requesting Holder and each such partner, affiliate,
director, officer, stockholder, employee, agent,
underwriter and controlling person for any legal or any
other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
liability, action or proceeding, provided that the
Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission
made in such registration statement, any such
preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and
in conformity with written information furnished to the
Company through an instrument duly executed by such
holder or Requesting Holder, as the case may be,
specifically stating that it is for use in the
preparation thereof and, provided further that the
Company shall not be liable to any Person who
participates as an underwriter in the offering or sale
of Registrable Securities or to any other Person, if
any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that
any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of
such Person's failure to send or give a copy of the
final prospectus, as the same may be then supplemented
or amended, within the time required by the Securities
Act to the Person asserting the existence of an untrue
statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation
of the sale of Registrable Securities to such Person if
such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on
behalf of such holder or such Requesting Holder or any
such director, officer, underwriter or controlling
person and shall survive the transfer of such securities
by such holder.
(b) Indemnification by the Sellers. The
Company may require, as a condition to including any
Registrable Securities in any registration statement
filed pursuant to section 2.3, that the Company shall
have received an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to
indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this
section 2.7) the Company, each director of the Company,
each officer of the Company and each other person, if
any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such
registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity
with written information furnished to the Company
through an instrument duly executed by such seller
specifically stating that it is for use in the
preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus,
amendment or supplement. Any such indemnity shall
remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any
such director, officer or controlling person and shall
survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly
after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this
section 2.7, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying
party, give written notice to the latter of the
commencement of such action, provided that the failure
of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this
section 2.7, except to the extent that the indemnifying
party is actually prejudiced by such failure to give
notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in
respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying
party may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the
indemnifying party to such indemnified party of its
election so to assume the defense thereof, the
indemnifying party shall not be liable to such
indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with
the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such
action which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in
respect to such claim or litigation. No indemnified
party shall consent to entry of any judgment or enter
into any settlement of any such action the defense of
which has been assumed by an indemnifying party without
the consent of such indemnifying party.
(d) Other Indemnification.
Indemnification similar to that specified in the
preceding subdivisions of this section 2.7 (with
appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect
to any required registration or other qualification of
securities under any Federal or state law or regulation
of any governmental authority, other than the Securities
Act.
(e) Indemnification Payments. The
indemnification required by this section 2.7 shall be
made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when
bills are received or expense, loss, damage or liability
is incurred.
(f) Contribution. If the
indemnification provided for in the preceding
subdivisions of this section 2.7 is unavailable to an
indemnified party in respect of any expense, loss,
claim, damage or liability referred to therein, then
each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such
expense, loss, claim, damage or liability (i) in such
proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
holder or underwriter, as the case may be, on the other
from the distribution of the Registrable Securities or
(ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the holder
or underwriter, as the case may be, on the other in
connection with the statements or omissions which
resulted in such expense, loss, damage or liability, as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one
hand and the holder or underwriter, as the case may be,
on the other in connection with the distribution of the
Registrable Securities shall be deemed to be in the same
proportion as the total net proceeds received by the
Company from the initial sale of the Registrable
Securities by the Company to the purchasers pursuant to
the Securities Purchase Agreement bear to the gain, if
any, realized by the selling holder or the underwriting
discounts and commissions received by the underwriter,
as the case may be. The relative fault of the Company
on the one hand and of the holder or underwriter, as the
case may be, on the other shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission
to state a material fact relates to information supplied
by the Company, by the holder or by the underwriter and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission, provided that the foregoing
contribution agreement shall not inure to the benefit of
any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the
provisions contained in the first sentence of
subdivision (a) of this section 2.7, and in no event
shall the obligation of any indemnifying party to
contribute under this subdivision (f) exceed the amount
that such indemnifying party would have been obligated
to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this
section 2.7 had been available under the circumstances.
The Company and the holders of Registrable
Securities agree that it would not be just and equitable
if contribution pursuant to this subdivision (f) were
determined by pro rata allocation (even if the holders,
Requesting Holders and any underwriters were treated as
one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth in the preceding sentence and
subdivision (c) of this section 2.7, any legal or other
expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim.
Notwithstanding the provisions of this
subdivision (f), no holder of Registrable Securities or
underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any
such holder, the net proceeds received by such holder
from the sale of Registrable Securities or (ii) in the
case of an underwriter, the total price at which the
Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any
such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission.
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.
2.8 Adjustments Affecting Registrable
Securities. The Company will not effect or permit to
occur any combination or subdivision of shares which
would adversely affect the ability of the holders of
Registrable Securities to include such Registrable
Securities in any registration of its securities
contemplated by this section 2 or the marketability of
such Registrable Securities under any such registration.
3. Definitions. As used herein, unless the
context otherwise requires, the following terms have the
following respective meanings:
Commission: The Securities and Exchange
Commission or any other Federal agency at the
time administering the Securities Act.
Common Stock: The common stock, par value
$.01 per share, of the Company.
Company: As defined in the introductory
paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of
1934, or any similar Federal statute, and the
rules and regulations of the Commission
thereunder, all as the same shall be in effect
at the time. Reference to a particular
section of the Securities Exchange Act of 1934
shall include a reference to the comparable
section, if any, of any such similar Federal
statute.
Initiating Holders: Any holder or holders of
Registrable Securities holding at least 20% of
the Registrable Securities (by number of
shares) and initiating a request pursuant to
section 2.1 for the registration of all or
part of such holder's or holders' Registrable
Securities.
Letter of Engagement: As defined in section
1.
Person: A corporation, an association, a
partnership, an organization, business, an
individual, a governmental or political
subdivision thereof or a governmental agency.
Promissory Notes: The four Promissory Notes
of the Company payable to Wand/▇▇▇▇▇▇
Investments L.P. and Wand/▇▇▇▇▇▇ Investments
II L.P., each such Note due October 16, 1995,
in the aggregate principal amount of
$1,700,000, with the interest thereon payable
in shares of Common Stock.
Purchase and Exchange Agreement: As defined
in Section 1.
Registrable Securities: Any shares of Common
Stock issued or issuable pursuant to the
Revised Standby Agreement or the Promissory
Notes or issued or issuable upon conversion of
the Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred
Stock, and Series H Preferred Stock or upon
exercise of the Warrants or the Rights
Warrants, and any securities issued or
issuable with respect to any Common Stock
referred to above by way of stock dividend or
stock split or in connection with a
combination of shares, recapitalization,
merger, consolidation or other reorganization
or otherwise. As to any particular
Registrable Securities, once issued such
securities shall cease to be Registrable
Securities when (a) a registration statement
with respect to the sale of such securities
shall have become effective under the
Securities Act and such securities shall have
been disposed of in accordance with such
registration statement, (b) they shall have
been distributed to the public pursuant to
Rule 144 (or any successor provision) under
the Securities Act, (c) they shall have been
otherwise transferred, new certificates for
them not bearing a legend restricting further
transfer shall have been delivered by the
Company and subsequent disposition of them
shall not require registration or
qualification of them under the Securities Act
or any similar state law then in force, or (d)
they shall have ceased to be outstanding.
Registration Expenses: All expenses incident
to the Company's performance of or compliance
with section 2, including, without limitation,
all registration, filing and NASD fees, all
stock exchange listing fees, all fees and
expenses of complying with securities or blue
sky laws, all word processing, duplicating and
printing expenses, messenger and delivery
expenses, the fees and disbursements of
counsel for the Company and of its independent
public accountants, including the expenses of
any special audits or "cold comfort" letters
required by or incident to such performance
and compliance, the fees and disbursements of
any counsel and accountants retained by the
holder or holders of more than 50% of the
Registrable Securities being registered, and
costs of policies of insurance against
liabilities arising out of the public offering
of the Registrable Securities being registered
and any fees and disbursements of underwriters
customarily paid by issuers or sellers of
securities, but excluding underwriting
discounts and commissions and transfer taxes,
if any, provided that, in any case where
Registration Expenses are not to be borne by
the Company, such expenses shall not include
salaries of Company personnel or general
overhead expenses of the Company, auditing
fees, premiums or other expenses relating to
liability insurance required by underwriters
of the Company or other expenses for the
preparation of financial statements or other
data normally prepared by the Company in the
ordinary course of its business or which the
Company would have incurred in any event.
Requesting Holder: As defined in section 2.6.
Revised Standby Agreement: The First Amended
and Restated Standby Financing and Purchase
Agreement, dated as of June 30, 1995, by and
between the Company and the Wand/▇▇▇▇▇▇ I
Partnership.
Rights Offering. The Company's offering of
rights to acquire units comprised of one share
of Series D Preferred Stock and a warrant to
acquire one-half share of Company Common Stock
at $2.00 per share made pursuant to a
Registration Statement declared effective
August 16, 1995.
Rights Warrants: As defined in Section 1.
Securities Act: The Securities Act of 1933,
or any similar Federal statute, and the rules
and regulations of the Commission thereunder,
all as of the same shall be in effect at the
time. References to a particular section of
the Securities Act of 1933 shall include a
reference to the comparable section, if any,
of any such similar Federal statute.
Securities Purchase Agreement: As defined in
section 1.
Wand/▇▇▇▇▇▇ I Partnership: As defined in
Section 1.
Wand/▇▇▇▇▇▇ ▇▇ Partnership: As defined in
Section 1.
Wand/▇▇▇▇▇▇ III Partnership: As defined in
Section 1.
Warrants: The Common Stock Purchase Warrants
of the Company issued (a) to the Wand/▇▇▇▇▇▇ I
Partnership and the Wand/▇▇▇▇▇▇ ▇▇ Partnership
pursuant to the Securities Purchase Agreement
and the Revised Standby Agreement (and any
Warrants issued in substitution or transfer
thereof), (b) to Wand Partners L.P. and Hill &
Partners in connection with the Letter of
Engagement (and any Warrants issued in
substitution or transfer thereof), and (c) to
the Wand/▇▇▇▇▇▇ I Partnership, the Wand/▇▇▇▇▇▇
▇▇ Partnership and the Wand/▇▇▇▇▇▇ III
Partnership pursuant to the Purchase and
Exchange Agreement (and any Warrants issued in
substitution or transfer thereof).
4. Rule 144. The Company shall timely file
the reports required to be filed by it under the
Securities Act and the Exchange Act (including but not
limited to the reports under sections 13 and 15(d) of
the Exchange Act referred to in subparagraph (c) of Rule
144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission
thereunder (or, if the Company is not required to file
such reports, will, upon the request of any holder of
Registrable Securities, make publicly available other
information) and will take such further action as any
holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable
such holder to sell Registrable Securities without
registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company
will deliver to such holder a written statement as to
whether it has complied with the requirements of this
Section 4.
5. Amendments and Waivers. This Agreement
may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company
shall have obtained the written consent to such
amendment, action or omission to act, of the holder or
holders of 66-2/3% or more of the shares of Registrable
Securities. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by
any consent authorized by this section 5, whether or not
such Registrable Securities shall have been marked to
indicate such consent.
6. Nominees for Beneficial Owners. In the
event that any Registrable Securities are held by a
nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election, be treated as the
holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of
Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement.
If the beneficial owner of any Registrable Securities so
elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership
of such Registrable Securities.
7. Notices. Except as otherwise provided in
this Agreement, all notices, requests and other
communications to any Person provided for hereunder
shall be in writing and shall be given to such Person
(a) in the case of a party hereto other than the
Company, addressed to such party in the manner set forth
in the applicable Securities Purchase Agreement or the
Warrants or at such other address as such party shall
have furnished to the Company in writing, or (b) in the
case of any other holder of Registrable Securities, at
the address that such holder shall have furnished to the
Company in writing, or, until any such other holder so
furnishes to the Company an address, then to and at the
address of the last holder of such Registrable
Securities who has furnished an address to the Company,
or (c) in the case of the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, to the attention
of its President, or at such other address, or to the
attention of such other officer, as the Company shall
have furnished to each holder of Registrable Securities
at the time outstanding. Each such notice, request or
other communication shall be effective (i) if given by
mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid or (ii) if given by any other means
(including, without limitation, by air courier), when
delivered at the address specified above, provided that
any such notice, request or communication to any holder
of Registrable Securities shall not be effective until
received.
8. Assignment. This Agreement shall be
binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not
any express assignment shall have been made, the
provisions of this Agreement which are for the benefit
of the parties hereto other than the Company shall also
be for the benefit of and enforceable by any subsequent
holder of any Registrable Securities, subject to the
provisions respecting the minimum numbers or percentages
of shares of Registrable Securities required in order to
be entitled to certain rights, or take certain actions,
contained herein.
9. Descriptive Headings. The descriptive
headings of the several sections and paragraphs of this
Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF DELAWARE WITHOUT REFERENCE TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
11. Counterparts. This Agreement may be
executed simultaneously in any number of counterparts,
each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same
instrument.
12. Entire Agreement. This Agreement
embodies the entire agreement and understanding between
the Company and each other party hereto relating to the
subject matter hereof and supersedes all prior
agreements and understandings relating to such subject
matter.
13. SUBMISSION TO JURISDICTION. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR OF
THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF
DELAWARE, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE
COURTS. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS FROM ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF TO SUCH PARTY BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH
PARTY AT ITS ADDRESS SPECIFIED IN SECTION 7. THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND THE COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
14. Severability. If any provision of this
Agreement, or the application of such provisions to any
Person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such
provision to Persons or circumstances other than those
to which it is held invalid, shall not be affected
thereby.
IN WITNESS WHEREOF, the parties have caused
this Agreement to be executed and delivered by their
respective officers thereunto duly authorized as of the
date first above written.
▇▇▇▇▇▇, INC.
By_____________________________
Name:
Title:
WAND/▇▇▇▇▇▇ INVESTMENTS L.P
By: Wand (▇▇▇▇▇▇) Inc.
as general partner
By_____________________________
Name:
Title:
WAND/▇▇▇▇▇▇ INVESTMENTS II L.P.
By: Wand (▇▇▇▇▇▇) Inc.
as general partner
By_____________________________
Name:
Title:
WAND/▇▇▇▇▇▇ INVESTMENTS III L.P
By: Wand (▇▇▇▇▇▇) Inc.
as general partner
By_____________________________
Name:
Title:
WAND PARTNERS L.P.
By: Wand Partners Inc.
as general partner
By_____________________________
Name:
Title:
HILL & PARTNERS
By:_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
[105401/2a]
▇▇▇▇▇▇, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 1996