EXHIBIT 10.43
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of January 11, 2002, between
the investor or investors signatory hereto (each an "Investor" and together the
"Investors"), and IMPCO Technologies, Inc., a Delaware corporation (the
"Company").
WHEREAS, simultaneously with the execution and delivery of this Agreement,
the Investor is purchasing from the Company, pursuant to a Common Stock and
Warrants Purchase Agreement dated the date hereof (the "Purchase Agreement"),
shares of the Company's Common Stock and Warrants (terms not defined herein
shall have the meanings ascribed to them in the Purchase Agreement); and
WHEREAS, the Company desires to grant to the Investors the registration
rights set forth herein with respect to the shares of Common Stock purchased
pursuant to the Purchase Agreement and shares of Common Stock issuable upon
exercise of the Warrants or adjustment of the Warrants as provided for therein
(hereinafter referred to as the "Stock" or "Securities" of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term "Registrable
----------------------
Security" means the Securities until (i) the Registration Statement has been
declared effective by the Commission, and all Securities have been disposed of
pursuant to the Registration Statement, (ii) all Securities have been sold under
circumstances under which all of the applicable conditions of Rule 144 (or any
similar provision then in force) under the Securities Act ("Rule 144") are met,
(iii) all Securities have been otherwise transferred to holders who may trade
such Securities without restriction under the Securities Act, and the Company
has delivered a new certificate or other evidence of ownership for such
Securities not bearing a restrictive legend or (iv) such time as, in the opinion
of counsel to the Company, all Securities may be sold at any time, without
volume or manner of sale limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be deemed to be made
in the definition of "Registrable Security" as is appropriate in order to
prevent any dilution or enlargement of the rights granted pursuant to this
Agreement.
Section 2. Restrictions on Transfer. Each Investor acknowledges and
------------------------
understands that prior to the registration of the Securities as provided herein,
the Securities are "restricted securities" as defined in Rule 144 promulgated
under the Act. Each Investor understands that no disposition or transfer of the
Securities may be made by such Investor in the absence of (i) an opinion of
counsel to the Investor, in form and substance reasonably satisfactory to the
Company, that such transfer may be made without registration under the
Securities Act or (ii) such registration.
1
With a view to making available to the Investors the benefits of Rule 144
under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Investors to sell securities of the
Company to the public without registration ("Rule 144"), so long as any Investor
holds any Registrable Securities, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144; and
(b) file with the Commission in a timely manner all reports and other
documents required to be filed with the Commission pursuant to Section 13 or
15(d) under the Exchange Act by companies subject to either of such sections,
irrespective of whether the Company is then subject to such reporting
requirements.
Section 3. Registration Rights With Respect to the Securities.
--------------------------------------------------
(a) The Company agrees that it will prepare and file with the Securities
and Exchange Commission ("Commission"), within thirty (30) days after the
Closing Date a registration statement (on Form S-3, or other appropriate
registration statement form) under the Securities Act (the "Registration
Statement"), at the sole expense of the Company (except as provided in Section
3(c) hereof), in respect of the Investors, so as to permit a non-underwritten
public offering and resale of the Registrable Securities under the Securities
Act by the Investors as selling stockholders and not as underwriters.
The Company shall use its reasonable best efforts to cause such
Registration Statement to become effective within ninety (90) days from the
Closing Date or, if earlier, within five (5) days of SEC clearance to request
acceleration of effectiveness. The number of shares designated in the
Registration Statement to be registered shall include all of the Shares and the
Warrant Shares, and shall include appropriate language regarding reliance upon
Rule 416 to the extent permitted by the Commission. The Company will notify the
Investors of the effectiveness of the Registration Statement within one Trading
Day of such event. In the event that the number of shares so registered shall
prove to be insufficient to register the resale of all of the Securities, then
the Company shall be obligated to file, within thirty (30) days of notice from
any Investor, a further Registration Statement registering such remaining shares
and shall use reasonable best efforts to prosecute such additional Registration
Statement to effectiveness within ninety (90) days of the date of such notice.
(b) The Company will maintain the Registration Statement or post-effective
amendment filed under this Section 3 effective under the Securities Act until
the earlier of (i) the date that none of the Securities covered by such
Registration Statement are or may become issued and outstanding, (ii) the date
that all of the Securities have been sold pursuant to such Registration
Statement, (iii) the date the Investors receive an opinion of counsel to the
Company, which counsel shall be reasonably acceptable to the Investors, that the
Securities may be sold under the provisions of Rule 144 without limitation as to
volume, (iv) all Securities have been otherwise transferred to persons who may
trade such shares without restriction under the Securities Act, and the Company
has delivered a new certificate or other evidence of ownership for such
securities not bearing a restrictive legend, or (v) all Securities may be sold
at any time, without volume or manner of sale limitations pursuant to Rule
144(k) or any similar provision
2
then in effect under the Securities Act in the opinion of counsel to the
Company, which counsel shall be reasonably acceptable to the Investor (the
"Effectiveness Period").
(c) All fees, disbursements and out-of-pocket expenses and costs incurred
by the Company in connection with the preparation and filing of the Registration
Statement under subparagraph 3(a) and in complying with applicable securities
and Blue Sky laws (including, without limitation, all attorneys' fees of the
Company) shall be borne by the Company. The Investors shall bear the cost of
underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Securities being registered and the fees and expenses of their
counsel. The Investors and one counsel for all of the Investors shall have a
reasonable period, not to exceed four (4) Trading Days, to review the proposed
Registration Statement or any amendment thereto, prior to filing with the
Commission, and the Company shall provide counsel for the Investors with copies
of any comment letters received from the Commission with respect thereto within
two (2) Trading Days of receipt thereof. The Company shall use its reasonable
best efforts to qualify any of the securities for sale in such states as any
Investor reasonably designates and shall furnish indemnification in the manner
provided in Section 6 hereof. However, the Company shall not be required to
qualify in any state which will require an escrow or other restriction relating
to the Company and/or the sellers, or which will require the Company to qualify
to do business in such state or require the Company to file therein any general
consent to service of process. The Company at its expense will supply the
Investors with copies of the applicable Registration Statement and the
prospectus included therein and other related documents in such quantities as
may be reasonably requested by the Investors.
(d) The Company shall not be required by this Section 3 to include an
Investor's Securities in any Registration Statement which is to be filed if, in
the opinion of counsel for both the Investor and the Company (or, should they
not agree, in the opinion of another counsel experienced in securities law
matters acceptable to counsel for the Investor and the Company) the proposed
offering or other transfer as to which such registration is requested is exempt
from applicable federal and state securities laws and would result in all
purchasers or transferees obtaining securities which are not "restricted
securities", as defined in Rule 144 under the Securities Act.
(e) In the event that (i) the Registration Statement to be filed by the
Company pursuant to Section 3(a) above is not declared effective by the
Commission within the earlier of ninety (90) days from the Closing Date or five
(5) days of clearance by the Commission to request effectiveness, (ii) such
Registration Statement is not maintained as effective by the Company for the
period set forth in Section 3(b) above or (iii) the additional Registration
Statement referred to in Section 3(a) is not declared effective within ninety
(90) days as set forth therein (each a "Registration Default"), then the Company
will pay Investor (pro rated on a daily basis), as liquidated damages for such
failure and not as a penalty two percent (2%) of the purchase price of shares of
Common Stock purchased from the Company and held by the Investor (regardless of
whether one or more such Registration Defaults are then in existence, but
without duplication of liquidated damages) until such Registration Statement has
been declared effective. Such payment of the liquidated damages shall be made to
the Investors in cash, within five (5) calendar days of demand, provided,
however, that the payment of such
3
liquidated damages shall not relieve the Company from its obligations to
register the Securities pursuant to this Section.
If the Company does not remit the payment to the Investors as set forth
above, the Company will pay the Investors reasonable costs of collection,
including attorneys' fees, in addition to the liquidated damages. The
registration of the Securities pursuant to this provision shall not affect or
limit the Investors' other rights or remedies as set forth in this Agreement.
(f) No provision contained herein shall preclude the Company from selling
securities, or including other selling shareholders who are not Investors,
pursuant to any Registration Statement in which it is required to include
Securities pursuant to this Section 3.
(g) If at any time or from time to time after the effective date of any
Registration Statement, the Company notifies the Investors in writing of the
existence of a Potential Material Event (as defined in Section 3(h) below), the
Investors shall not offer or sell any Securities or engage in any other
transaction involving or relating to Securities, from the time of the giving of
notice with respect to a Potential Material Event until the Investors receive
written notice from the Company that such Potential Material Event either has
been disclosed to the public or no longer constitutes a Potential Material
Event; provided, however, that the Company may not so suspend the right to such
holders of Securities for more than sixty (60) days in the aggregate during any
twelve month period (and no longer than thirty (30) days as to any single
delay), during the period the Registration Statement is required to be in
effect, and if such period is exceeded, such event shall be a Registration
Default. If a Potential Material Event shall occur prior to the date a
Registration Statement is required to be filed, then the Company's obligation to
file and effect such Registration Statement shall be delayed respectively
without penalty for not more than thirty (30) days, and such delay or delays
shall not constitute a Registration Default. The Company must, if lawful, give
the Investors notice in writing at least two (2) Trading Days prior to the first
day of the blackout period.
(h) "Potential Material Event" means any of the following: (a) the
possession by the Company of material information not ripe for disclosure in a
registration statement, as determined in good faith by the Chief Executive
Officer or the Board of Directors of the Company that disclosure of such
information in a Registration Statement would be detrimental to the business and
affairs of the Company; or (b) any material engagement, activity or transaction
by the Company which would, in the good faith determination of the Chief
Executive Officer or the Board of Directors of the Company, be adversely
affected by disclosure in a registration statement at such time, which
determination shall be accompanied by a good faith determination by the Chief
Executive Officer or the Board of Directors of the Company that the applicable
Registration Statement would be materially misleading absent the inclusion of
such information.
Section 4. Cooperation with Company. The Investors will cooperate with the
------------------------
Company in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by the Company (which shall
include all information regarding the Investors and proposed manner of sale of
the Registrable Securities required to be disclosed
4
in any Registration Statement) and executing and returning all documents
reasonably requested in connection with the registration and sale of the
Registrable Securities and entering into and performing their obligations under
any underwriting agreement, if the offering is an underwritten offering, in
usual and customary form, with the managing underwriter or underwriters of such
underwritten offering. Nothing in this Agreement shall obligate any Investor to
consent to be named as an underwriter in any Registration Statement. The
obligation of the Company to register the Registrable Securities shall be
absolute and unconditional as to those Securities which the Commission will
permit to be registered without naming the Investors as underwriters. Any delay
or delays caused by the Investors by failure to cooperate as required hereunder
shall not constitute or be counted toward a Registration Default.
Section 5. Registration Procedures. If and whenever the Company is required
-----------------------
by any of the provisions of this Agreement to effect the registration of any of
the Registrable Securities under the Act, the Company shall (except as otherwise
provided in this Agreement), as expeditiously as possible, subject to the
Investors' assistance and cooperation as reasonably required with respect to
each Registration Statement:
(a) (i) prepare and file with the Commission such amendments and
supplements to the 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 Act with respect to the sale or other
disposition of all securities covered by such registration statement whenever
the Investors shall desire to sell or otherwise dispose of the same (including
prospectus supplements with respect to the sales of securities from time to time
in connection with a registration statement pursuant to Rule 415 promulgated
under the Act) and (ii) take all lawful action such that each of (A) the
Registration Statement and any amendment thereto does not, when it becomes
effective, contain 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, in light of the circumstances under which they were made, not
misleading and (B) the prospectus forming part of the Registration Statement,
and any amendment or supplement thereto, does not at any time during the
Registration Period 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, in light of the circumstances under which they were made,
not misleading;
(b) (i) prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or delivery of
any prospectus (including any supplements thereto), provide draft copies of the
Selling Stockholders and Plan of Distribution sections (or equivalents) to the
Investors as required by Section 3(c) and reflect in such documents all such
comments as the Investors (and their counsel) reasonably may propose with
respect thereto and (ii) furnish to each Investor such numbers of copies of a
prospectus including a preliminary prospectus or any amendment or supplement to
any prospectus, as applicable, in conformity with the requirements of the Act,
and such other documents, as such Investor may reasonably request in order to
facilitate the public sale or other disposition of the securities owned by such
Investor;
(c) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as the
5
Investors shall reasonably request (subject to the limitations set forth in
Section 3(c) above), and do any and all other acts and things which may be
necessary or advisable to enable each Investor to consummate the public sale or
other disposition in such jurisdiction of the securities owned by such Investor;
(d) list such Registrable Securities on the Principal Market, if the
listing of such Registrable Securities is then permitted under the rules of such
Principal Market;
(e) notify each Investor at any time when a prospectus relating thereto
covered by the Registration Statement is required to be delivered under the Act,
of the happening of any event of which it has knowledge as a result of which the
prospectus included in the 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, and the Company
shall prepare and file a curative amendment under Section 5(a) as quickly as
commercially possible;
(f) as promptly as practicable after becoming aware of such event, notify
each Investor who holds Registrable Securities being sold (or, in the event of
an underwritten offering, the managing underwriters) of the issuance by the
Commission of any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time and take all lawful action
to effect the withdrawal, rescission or removal of such stop order or other
suspension;
(g) cooperate with the Investors to facilitate the timely preparation and
delivery of certificates for the Registrable Securities to be offered pursuant
to the Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts, as the case may be, as the
Investors reasonably may request and registered in such names as the Investors
may request; and, within three (3) Trading Days after a Registration Statement
which includes Registrable Securities is declared effective by the Commission,
deliver and cause legal counsel selected by the Company to deliver to the
transfer agent for the Registrable Securities (with copies to the Investors) an
appropriate instruction and, to the extent necessary, an opinion of such
counsel;
(h) take all such other lawful actions reasonably necessary to expedite and
facilitate the disposition by the Investors of their Registrable Securities in
accordance with the intended methods therefor provided in the prospectus which
are customary for issuers to perform under the circumstances;
(i) in the event of an underwritten offering, promptly include or
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree should
be included therein and to which the Company does not reasonably object and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment; and
(j) maintain a transfer agent and registrar for its Common Stock.
6
Section 6. Indemnification.
---------------
(a) To the maximum extent permitted by law, the Company agrees to indemnify
and hold harmless the Investors and each person, if any, who controls an
Investor within the meaning of the Securities Act (each a "Distributing
Investor") against any losses, claims, damages or liabilities, joint or several
(which shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), to which the Distributing Investor may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Investor, its counsel, affiliates or any underwriter, specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) To the maximum extent permitted by law, each Distributing Investor
agrees that it will indemnify and hold harmless the Company, and each officer
and director of the Company or person, if any, who controls the Company within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses) to which the Company or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, or any related final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Investor, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Distributing Investor
may otherwise have. Notwithstanding anything to the contrary herein, the
Distributing Investor shall not be liable under this Section 6 for any amount in
excess of the net proceeds to such Distributing Investor as a result of the sale
of Registrable Securities pursuant to the Registration Statement (including any
amount that could be received by such Investor for Registrable Securities not
yet sold).
7
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action against such indemnified party, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party except to the extent the failure of
the indemnified party to provide such written notification actually prejudices
the ability of the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof,
subject to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified parties as a group
shall have the right to employ one separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been reasonably advised by its counsel that there may be one or more legal
defenses available to the indemnifying party different from or in conflict with
any legal defenses which may be available to the indemnified party or any other
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the indemnified party, which firm shall be
designated in writing by the indemnified party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld or
delayed so long as such settlement includes a full release of claims against the
indemnified party. All expenses of the indemnified party (including costs of
defense and investigation incurred in a manner not inconsistent with this
Section and, except as otherwise provided above, reasonable attorneys' fees and
expenses) shall be paid by the indemnifying party to the indemnified party
within ten (10) Trading Days of written notice thereof to the indemnifying
party; provided, that the indemnifying party may require such indemnified party
to undertake to reimburse the indemnifying party for all of such fees and
expenses, with interest at market rates, if and to the extent that it is finally
judicially determined that such indemnified party is not entitled to
indemnification hereunder.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final
8
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
the express provisions of Section 6 hereof provide for indemnification in such
case, or (ii) contribution under the Securities Act may be required on the part
of any indemnified party, then the Company and the applicable Distributing
Investor shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees and expenses), in either such
case (after contribution from others) on the basis of relative fault as well as
any other relevant equitable considerations. The relative fault 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 Company on the one hand
or the applicable Distributing Investor on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Distributing Investor
agree that it would not necessarily be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. 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.
Notwithstanding any other provision of this Section 7, in no event shall
any (i) Investor be required to undertake liability to any person under this
Section 7 for any amounts in excess of the dollar amount of the proceeds
received by such Investor from the sale of such Investor's Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto, but including any amount that could be received by such Investor for
Registrable Securities not yet sold) pursuant to any Registration Statement
under which such Registrable Securities are registered under the Securities Act
and (ii) underwriter be required to undertake liability to any person hereunder
for any amounts in excess of the aggregate discount, commission or other
compensation payable to such underwriter with respect to the Registrable
Securities underwritten by it and distributed pursuant to such Registration
Statement.
Section 8. Notices. All notices, demands, requests, consents, approvals,
-------
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) hand delivered, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by facsimile, addressed as set forth in the
Purchase Agreement or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or
9
the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the first business day following the date of sending by reputable
courier service, fully prepaid, addressed to such address, or (c) upon actual
receipt of such mailing, if mailed. Either party hereto may from time to time
change its address or facsimile number for notices under this Section 8 by
giving at least ten (10) days' prior written notice of such changed address or
facsimile number to the other party hereto.
Section 9. Assignment. This Agreement is binding upon and inures to the
----------
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. The rights granted the Investors under this Agreement may be
assigned to any permitted transferee of an Investor as permitted by the Purchase
Agreement, provided that such transferee shall agree to be bound by the terms of
this Agreement.
Section 10. Additional Covenants of the Company. The Company agrees that at
-----------------------------------
such time as it otherwise meets the requirements for the use of Securities Act
Registration Statement on Form S-3 for the purpose of registering the
Registrable Securities, it shall file all reports and information required to be
filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of such form.
Section 11. Counterparts/Facsimile. This Agreement may be executed in two
----------------------
or more counterparts, each of which shall constitute an original, but all of
which, when together shall constitute but one and the same instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. In lieu of the original, a facsimile
transmission or copy of the original shall be as effective and enforceable as
the original.
Section 12. Remedies. The remedies provided in this Agreement are
--------
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction.
Section 13. Conflicting Agreements. The Company shall not enter into any
----------------------
agreement with respect to its securities that is inconsistent with the rights
granted to the holders of Registrable Securities in this Agreement or otherwise
prevents the Company from complying with all of its obligations hereunder.
Section 14. Headings. The headings in this Agreement are for reference
--------
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 15. Governing Law, Arbitration. This Agreement shall be governed by
--------------------------
and construed in accordance with the laws of the State of New York applicable to
contracts made
10
in New York by persons domiciled in New York City and without regard to its
principles of conflicts of laws. Any dispute under this Agreement shall be
submitted to arbitration under the American Arbitration Association (the "AAA")
in New York City, New York, and shall be finally and conclusively determined by
the decision of a board of arbitration consisting of three (3) members
(hereinafter referred to as the "Board of Arbitration") selected as according to
the rules governing the AAA. The Board of Arbitration shall meet on consecutive
business days in New York City, New York, and shall reach and render a decision
in writing (concurred in by a majority of the members of the Board of
Arbitration) with respect to the amount, if any, which the losing party is
required to pay to the other party in respect of a claim filed. In connection
with rendering its decisions, the Board of Arbitration shall adopt and follow
the laws of the State of New York. To the extent practical, decisions of the
Board of Arbitration shall be rendered no more than thirty (30) calendar days
following commencement of proceedings with respect thereto. The Board of
Arbitration shall cause its written decision to be delivered to all parties
involved in the dispute. Any decision made by the Board of Arbitration (either
prior to or after the expiration of such thirty (30) calendar day period) shall
be final, binding and conclusive on the parties to the dispute, and entitled to
be enforced to the fullest extent permitted by law and entered in any court of
competent jurisdiction. The Board of Arbitration shall be authorized and is
hereby directed to enter a default judgment against any party failing to
participate in any proceeding hereunder within the time periods set forth in the
AAA rules. The non-prevailing party to any arbitration (as determined by the
Board of Arbitration) shall pay the expenses of the prevailing party, including
reasonable attorneys' fees, in connection with such arbitration. Any party shall
be entitled to obtain injunctive relief from a court in any case where such
relief is available, and the non-prevailing party in any such injunctive
proceeding shall pay the expenses of the prevailing party, including reasonable
attorneys' fees, in connection with such injunctive proceeding.
[Signature pages follow]
11
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed, on the day and year first above written.
IMPCO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: Chief Financial Officer and Treasurer
-------------------------------------------
[Signature pages continued]
12
INVESTOR
By:
-------------------------------------------
Authorized Signatory
13
The following Investors have executed the Registration Rights Agreement as of
January 11, 2002 on counter-part signature pages:
Investor Name Amount of Shares
-------------------------------------------------------------------------
Catalyst Partners L.P. 242,500
-------------------------------------------------------------------------
Catalyst International Ltd. 7,500
-------------------------------------------------------------------------
Cranshire Capital L.P. 204,445
-------------------------------------------------------------------------
Euram Cap Strat. "A" Fund Ltd. 62,222
-------------------------------------------------------------------------
Gryphon Master Fund 222,222
-------------------------------------------------------------------------
Quantico Partners, LP 222,222
-------------------------------------------------------------------------
Smithfield Fiduciary LLC 133,333
-------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ Capital Partners Ltd 372,223
-------------------------------------------------------------------------
CIBC Int'l Arbitrage Corp. 57,999
-------------------------------------------------------------------------
Abington Capital Limited Partnership 71,111
-------------------------------------------------------------------------
Pit Bull Partners, LLC 35,556
-------------------------------------------------------------------------
Santac Associates 17,778
-------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 53,334
-------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 35,556
-------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 10,000
-------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,500
-------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 7,500
-------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000
-------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ 10,000
-------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ 25,000
-------------------------------------------------------------------------
14
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,000
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ 5,000
--------------------------------------------------------------------------------
Nob Hill Capital Partners LP 22,000
--------------------------------------------------------------------------------
Matador Microcap Fund, LP 5,000
--------------------------------------------------------------------------------
Everglades Offshore Fund, Ltd 15,000
--------------------------------------------------------------------------------
Everglades Partners, LP 14,700
--------------------------------------------------------------------------------
Contrarian Opportunities Fund, LP 3,400
--------------------------------------------------------------------------------
Pleiades Partners 4,000
--------------------------------------------------------------------------------
Winston Growth Fund, LP 2,300
--------------------------------------------------------------------------------
OTATO Limited Partnership 44,444
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 17,777
--------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ 25,878
--------------------------------------------------------------------------------
Comfort Investment Co. Ltd 10,000
--------------------------------------------------------------------------------
▇▇▇▇▇ Bros L.P. 10,000
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ 2,500
--------------------------------------------------------------------------------
15