EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of April 22, 2002 by and among Infinity, Inc., a Colorado corporation (the
"Company"), and the persons and the entities listed below (each, an "Investor"
and collectively, the "Investors"). The Company and the Investors are
sometimes referred to herein collectively as the "Parties" or each
individually as a "Party".
WHEREAS, in connection with the Purchase Agreement of even date herewith
by and among the Parties hereto (the "Purchase Agreement"), the Company has
agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue and sell to the Investors up to $12,540,000 aggregate
principal amount of those certain 7% Subordinated Convertible Notes due 2007
of the Company and pursuant to Section 1.2(b) hereof to issue additional notes
in such form to the holders of such notes under certain circumstances
(collectively, the "Notes"); and
WHEREAS, to induce the Investors to execute and deliver the Purchase
Agreement, the Company agreed to provide certain registration rights under the
Securities Act (as defined below) for the Notes and the shares of Common Stock
issuable upon the conversion thereof (the "Shares").
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
1. Registration Rights.
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Commission" shall mean the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act and the Exchange Act.
(b) "Common Stock" shall mean the Company's common stock,
$.0001 par value per share.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, 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.
(d) "Excluded Registration" means a registration under the
Securities Act of (i) securities pursuant to the Shelf Registration, (ii)
securities registered on Form S-8 or any similar successor form and (iii)
securities registered to effect the acquisition of or combination with another
Person.
(e) "Material Adverse Effect" shall mean a material adverse
effect on the price or success of an offering.
(f) "Holder" shall mean any Person or Persons to whom
Registrable Securities have been or are issued or any transferees of such
Person or Persons.
Page 1
(g) "Person" shall mean a corporation, a limited liability
company, an association, a partnership, an organization, a business, a trust,
an individual, a governmental or political subdivision thereof or a
governmental agency.
(h) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a Registration
Statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such Registration Statement by the
Commission.
(i) "Registrable Securities" shall mean all of the Notes and
the Shares.
(j) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 1.2
and 1.3 hereof, including, without limitation, all registration, qualification
and filing fees, indenture trustee fees and expenses and other customary third
party fees and expenses in connection with facilitating the public trading of
the Notes, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, reasonable fees and disbursements of the Holders' Counsel (as
defined in Section 1.5(b)), "blue sky" fees and expenses and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company). Registration Expenses shall not include
Selling Expenses.
(k) "Registration Statement" shall mean any registration
statement which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus included therein, all
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
(l) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
(m) "Securities Act" shall mean the Securities Act of 1933, as
amended, 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.
(n) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and all reasonable fees and disbursements of counsel
for the selling Holders (other than those included in Registration Expenses).
(o) "Shelf Registration" shall mean a Registration Statement
filed by the Company in accordance with Rule 415 of the Securities Act for the
Registrable Securities.
1.2 Registration.
(a) Shelf Registration. The Company shall file with the
Commission a Shelf Registration for the Registrable Securities on Form S-3 or,
if Form S-3 is not available, Form SB-2 or S-1 as the earliest practicable
date but in any event within 90 days of the date hereof and shall cause such
Shelf Registration to be declared effective within 180 days of the date
Page 2
hereof. The Company shall maintain such Shelf Registration continuously in
effect for a period not less than five years from the date hereof. If
necessary, the Company shall cause to be filed, and shall use its best efforts
to have declared effective as soon as practicable following filing, additional
registration statements or amendments as necessary to maintain such
effectiveness for such five-year period.
(b) Failure to Register or Lapse in Effectiveness.
(i) Should the Shelf Registration not be declared
effective within the 180 day period, the Company shall, on the 181st day after
the date hereof, deliver to each Holder either (A) additional Notes with a
stated principal amount equal to the product of (1) the principal amount of
the Notes held by such Holder, including as Notes for this purpose the
principal amount of any Notes previously converted into the Shares held by
such Holder (such principal so calculated being the "Notional Principal
Amount") and (2) 5%, or (B) cash in the amount of such product, at the
Company's sole election. On each successive 30th day thereafter until the
Shelf Registration is declared effective, the Company shall deliver to each
Holder either (A) additional Notes in a stated principal amount equal to 1% of
the Notional Principal Amount or (B) cash in an amount equal to 1% of the
Notional Principal Amount, at the Company's sole election.
(ii) Should the effectiveness of the Shelf Registration
lapse for any reason while the Company has any obligation to maintain its
effectiveness, the Company shall deliver to each Holder on each successive
30th day of all such lapses taken on a cumulative basis, either (A) additional
Notes in a stated principal amount equal to 5/12ths of 1% of the Notional
Principal Amount or (B) cash in an amount equal to 5/12ths of 1% of the
Notional Principal Amount, at the Company's sole election.
(iii) The parties acknowledge and agree that the
covenants and agreements set forth in Section 1.2(a) are an essential
inducement to the Investor's purchasing the Registrable Securities and that if
such covenants and agreements are breached, the Investors would be deprived of
the benefits of their bargain. The provisions of this Section 1.2 shall be in
addition to and not in lieu of any other equitable or legal remedies available
to the Holders in respect of any breach by the Company of Section 1.2 hereof.
(c) Piggyback Registration.
(i) Should the Company propose to register any of its
equity securities (other than pursuant to an Excluded Registration) under the
Securities Act for sale to the public (whether for the account of the Company
or the account of any securityholder of the Company) at any time or from time
to time when it is in default of its obligations under Section 1.2(a) and the
form of registration statement to be used permits the registration of
Registrable Securities, the Company shall give prompt written notice to each
Holder (which notice shall be given not less than thirty (30) days prior to
the effective date of the Company's registration statement), offering each
such Holder the opportunity to include any or all of its or his Registrable
Securities in such registration statement, subject to the limitations
contained in Section 1.2(c)(ii) hereof. Each Holder who desires to have its
or his Registrable Securities included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be
registered) within twenty (20) days after the date of such notice from the
Company. Subject to Section 1.2(c)(ii) below, the Company shall include in
such registration statement all such Registrable Securities so requested to be
Page 3
included therein; provided, however, that the Company may at any time withdraw
or cease proceeding with any such registration if it shall at the same time
withdraw or cease proceeding with the registration of all other equity
securities originally proposed to be registered.
(ii) If the Registrable Securities requested to be
included in the registration statement by any Holder differ from the type of
securities proposed to be registered by the Company and the managing
underwriter advises the Company that, due to such differences, the inclusion
of such Registrable Securities would cause a Material Adverse Effect, then (i)
the number of such Holder's or Holders' Registrable Securities to be included
in the registration statement shall be reduced to an amount which, in the
judgment of the managing underwriter, would eliminate such Material Adverse
Effect, or (ii) if no such reduction would, in the judgment of the managing
underwriter, eliminate such Material Adverse Effect, then the Company shall
have the right to exclude all such Registrable Securities from such
registration statement provided no other securities of such type are included
and offered for the account of any other Person in such registration
statement. Any partial reduction in number of Registrable Securities to be
included in the registration statement pursuant to clause (i) of the
immediately preceding sentence shall be effected pro rata based on the ratio
which such Holder's requested shares bears to the total number of the same
type of shares requested to be included in such registration statement by all
Persons who have requested (pursuant to contractual registration rights) that
their shares be included in such registration statement. If the Registrable
Securities requested to be included in the registration statement are of the
same type as the securities being registered by the Company and the managing
underwriter advises the Company that the inclusion of such Registrable
Securities would cause a Material Adverse Effect, the Company will be
obligated to include in such registration statement, as to each Holder, only a
portion of the shares that such Holder has requested be registered equal to
the ratio which such Holder's requested shares bears to the total number of
shares requested to be included in such registration statement by all Persons
who have requested (pursuant to contractual registration rights) that their
shares be included in such registration statement.
1.3 Limitations on Subsequent Registration Rights. From and after
the date hereof, without the approval of the Holders of a majority of the
Registrable Securities, the Company shall not enter into any agreement
granting any holder or prospective holder of any securities of the Company
registration rights with respect to such securities unless the agreement does
not grant rights which would hinder or delay the Company from complying with
this Agreement. The Company has not previously and shall not in the future
enter into any agreement, arrangement or understanding with respect to its
securities which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
1.4 Expenses of Registration. All Registration Expenses shall be
borne by the Company. All Selling Expenses relating to securities registered
on behalf of the Holders shall be borne by the Holders of such securities pro
rata on the basis of the number of securities so registered.
1.5 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section
1, the Company will keep each Holder advised in writing as to the initiation
of each registration and such amendment thereof and as to the completion
thereof. At its expense the Company will:
Page 4
(a) Promptly prepare and file with the Commission a
Registration Statement with respect to such securities and use its best
efforts to cause such Registration Statement to become effective as promptly
as possible and remain effective for the period provided in Section 1.2 (the
"Registration Period"); provided, however, that if, after such Registration
Statement has become effective, the offering of the Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or similar order of the Commission or other governmental agency or court (an
"Order"), such registration will be deemed not to have been effected except to
any Holder whose untrue statement or omission is contained in any information
or affidavit furnished in writing by a Holder to the Company specifically for
inclusion in such registration statement which was the cause of such Order.
Notwithstanding the foregoing, if within sixty (60) days after the effective
date of the stop order, injunction or similar order of the Commission or other
governmental agency or court, the same is lifted and the effectiveness of the
registration is restored, the registration shall be deemed to have been
effected, provided that the Registration Period (i) will be tolled during the
period the stop order, injunction or similar order is in effect, (ii) shall
resume upon the lifting thereof and (iii) shall be extended one day for each
day during the period that the stop order, injunction or similar order is in
effect.
(b) Furnish, at least five (5) business days before filing a
Registration Statement that registers such Registrable Securities, a
prospectus relating thereto and any amendments or supplements relating to such
a Registration Statement or prospectus, to one counsel selected by the Holders
(the "Holders' Counsel"), copies of all such documents proposed to be filed
(it being understood that such five-business-day period need not apply to
successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to the Holders' Counsel in advance of the
proposed filing by a period of time that is customary and reasonable under the
circumstances).
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to keep such
Registration Statement effective for the Registration Period, and to comply
with the provisions of the Securities Act with respect to the sale and other
disposition of all securities covered by such Registration Statement.
(d) Notify in writing to the Holders' Counsel promptly (i) of
the receipt by the Company of any notification with respect to any comments by
the Commission with respect to such Registration Statement or prospectus or
any amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Company of any notification with respect
to the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or prospectus or any amendment or
supplement thereto or the initiation or threatening of any proceeding for that
purpose and (iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of such Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes.
Page 5
(e) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities
or "blue sky" laws of such jurisdictions as shall be reasonably requested by
the Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(f) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such number of
copies of the Registration Statement, preliminary prospectus, final prospectus
and such other documents as such Holders or underwriters may reasonably
request in order to facilitate the public offering of such securities.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by
such Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of 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 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.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
Registration Statement with respect to such securities becomes effective, (i)
a copy addressed to Holders of the opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and (in a non-underwritten
offering) to the Holders requesting registration of Registrable Securities and
(ii) a copy addressed to Holders of the letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (in a non-underwritten offering) to the Holders
requesting registration of Registrable Securities.
(j) List the Shares included in the Registrable Securities on
any securities exchange on which any shares of the Common Stock are listed.
(k) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and the securities
commission or other regulatory authority of any relevant state or other
jurisdiction and make available to its securityholders, as soon as reasonably
practicable, earnings statements (which need not be audited) covering a period
of 12 months beginning within three months after the effective date of the
Registration Statement, which earnings statements shall satisfy the provisions
of Section 11(a) of the Securities Act.
Page 6
(l) Use its best efforts to take all other steps reasonably
necessary to effect the registration of such Registrable Securities
contemplated hereby.
1.6 Indemnification.
(a) The Company will indemnify each Holder and each Holder's
officers, directors, employees, principals, equity holders and partners; each
underwriter, broker or any other Person (other than the Company) acting on
behalf of such Holder; and each Person (other than the Company) controlling
such Person within the meaning of Section 15 of the Securities Act, with
respect to which registration, qualification or compliance has been effected
pursuant to this Section 1, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof) (collectively, "Losses"),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened based on (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any Registration Statement,
preliminary or final prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or (ii) any 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 in which they were
made, not misleading, or (iii) any violation by the Company of the Securities
Act, state securities or "blue sky" laws or any rule or regulation promulgated
thereunder applicable to the Company in connection with any such registration,
qualification or compliance (each statement, omission or violation referred to
in clauses (i), (ii) and (iii) of this Section 1.6(a) being referred to as a
"Violation"), and the Company will reimburse each such Holder, each of its
officers and directors, each such underwriter, broker or other Person (other
than the Company) acting on behalf of such Holder, and each such controlling
Person (other than the Company) for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending
any such Loss, provided that the Company will not be liable to any such Holder
or Person in any such case to the extent that any such Loss arises out of or
is based on any untrue statement or omission (or alleged untrue statement or
omission), made in conformity with written information furnished to the
Company by an instrument duly executed by such Holder or Person and stated to
be specifically for use therein or the preparation thereby.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, broker or other Person acting on
behalf of the Company, and each Person who controls any of the foregoing
Persons within the meaning of Section 15 of the Securities Act, and each other
such Holder, each of its officers and directors and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, against
all Losses arising out of any untrue statement (or alleged untrue statement)
of a material fact contained in any such Registration Statement, preliminary
or final prospectus, offering circular or other document, 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 will
reimburse the Company, such Holders, such directors, officers, underwriters,
brokers, other Persons acting on behalf of the Company or control Persons for
any legal or any other expenses reasonably incurred in connection with
investigating, preparing or defending any such Loss, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Page 7
Statement, preliminary or final prospectus, offering circular or other
document in conformity with written information furnished to the Company by an
instrument duly executed by such Holder and stated to be specifically for use
therein or the preparation thereby. Notwithstanding the foregoing, the
liability of each Holder under this subsection (b) shall be limited to an
amount equal to the aggregate proceeds received by such Holder from the sale
of Registrable Securities in such registration.
(c) Each Person entitled to indemnification under this Section
1.6 (the "Indemnified Party") shall give notice to the Party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in
such defense at such Indemnified Party's expense, and provided further, that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section 1.7
unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different defenses. If (i)
the Indemnifying Party shall have failed to assume the defense of such claim
and to employ counsel reasonably satisfactory to the Indemnified Party in a
timely manner or (ii) in the reasonable judgment of any Indemnified Party a
conflict of interest may exist between such Indemnified Party and the
Indemnifying Party with respect to such claim, the fees and expenses of any
counsel employed by the Indemnified Party shall be at the expense of the
Indemnifying Party; provided that, if the Indemnifying Party is obligated to
pay the fees and expenses of counsel for other Indemnified Parties, such
Indemnifying Party shall be obligated to pay only the fees and expenses
associated with one attorney or law firm for the Indemnified Parties, unless
there exists a conflict of interest or separate and different defenses among
the Indemnified Parties. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement 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.
(d) If the indemnification provided for in this Section 1.6 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, claim, damage, liability or action referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amounts paid or payable by such
Indemnified Party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
claim, damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the
Page 8
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the foregoing,
the maximum amount which any Holder shall be required to contribute pursuant
to this Section 1.6(d) shall be limited to an amount equal to the net proceeds
actually received by such Holder from the sale of Registrable Securities
effected pursuant to such registration.
1.7 Information by Holder. The Holders of securities included in
any registration shall furnish to the Company in writing such information
regarding such Holders, the Registrable Securities held by such Holders and
the distribution proposed by such Holders as the Company may reasonably
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 1.
1.8 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after the effective date
that the Company becomes subject to the reporting requirements of the
Securities Act or the Exchange Act.
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements);
(c) So long as a Holder owns any Registrable Securities to
furnish to the Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144,
and of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents of the Company and other information in the possession of or
reasonably obtainable by the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder
to sell any such securities without registration. The Company will take
action reasonably requested by a Holder to facilitate the transfer of
Registrable Securities pursuant to Rule 144.
1.9 Transfer of Registration Rights. The rights of each Holder
hereunder shall without any further action on the part of such Holder be
assigned and transferred to any transferee of the Registrable Securities;
provided, that immediately after the transfer the further disposition of any
of the securities is restricted by the Securities Act; and provided further,
however, that such transferee shall, as a condition to the exercise of such
rights, be subject to the restrictions contained in this Agreement applicable
to the seller or transferor.
2. Miscellaneous.
2.1 Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of law.
Page 9
(b) The Parties hereto irrevocably consent to the jurisdiction
of the courts of the State of New York and of any federal court located in
such State in connection with any action or proceeding arising out of or
relating to this Agreement, any document or instrument delivered pursuant to,
in connection with or simultaneously with this Agreement, or a breach of this
Agreement or any such document or instrument. In any such action or
proceeding, each party hereto waives personal service of any summons,
complaint or other process and agrees that service thereof may be made in
accordance with Section 2.5. Within 30 days after such service, or such other
time as may be mutually agreed upon in writing by the attorneys for the
parties to such action or proceeding, the party so served shall appear or
answer such summons, complaint or other process.
2.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Holder, and
the closing of the transactions contemplated hereby.
2.3 Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the Parties
hereto.
2.4 Entire Agreement. This Agreement, the Notes, and the Purchase
Agreement contain the entire understanding and agreement of the Parties with
respect to the subject matter hereof and thereof. This Agreement and the
Purchase Agreement supersede all prior agreements and understandings among the
Parties hereto with respect to the subject matter hereof.
2.5 Amendments. This Agreement may only be amended by mutual
written Agreement of the parties.
2.6 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
mailed by certified or registered mail, postage prepaid, return receipt
requested, by courier or facsimile (provided confirmation of transmission is
mechanically generated and kept on file by the sending party), addressed (a)
if to any Holder, at such Holder's address as set forth in the Company's
records, or at such other address as such Holder shall have furnished to the
Company in writing with copies to CEUT at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, (b) if to the Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, or at such other
address as the Company shall have furnished to such Holders in writing.
Notices that are mailed shall be deemed to have been given five days after
deposit in the United States mail and notices delivered personally, by
facsimile or by courier shall be deemed to have been given upon delivery to
recipient's address.
2.7 Delays or Omissions. No failure or delay by any Holder in
exercising any right, power or privilege hereunder and no course of dealing
between the Company, on the one hand, and any Holder, on the other hand, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. Any
Person having rights under any provision of this Agreement shall be entitled
to enforce such rights specifically or to recover damages or to exercise any
other remedy available to it at law or in equity. The foregoing rights and
remedies shall be cumulative and the exercise of any right or remedy provided
herein shall not preclude any Person from exercising any other right or remedy
Page 10
provided herein. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
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.
No notice to or demand on the Company in any case shall entitle the Company to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Holder to any other or further action
in any circumstances without notice or demand. Each covenant contained herein
shall operate independently of any other covenant contained herein.
2.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.9 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to Persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties hereto, the parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision which will achieve to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
2.10 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
[SIGNATURE PAGE FOLLOWS]
Page 11
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
INFINITY, INC.
By:____________________________________
Name:_______________________________
Title:______________________________
INVESTOR:
__________________________________ _______________________________________
Print Name of Joint Purchaser Print Name of Purchaser or Entity
(if any)
__________________________________ _______________________________________
Signature of Joint Purchaser Signature of Purchaser or Authorized
(if any) Signatory
_______________________________________
Print Name of Authorized Signatory (if
applicable)
_______________________________________
Title of Authorized Signatory (if
applicable)
Page 12