EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD EUROPE B.V.
AND
INDIGO N.V.
DATED AS OF OCTOBER 17, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................................................................1
ARTICLE II REGISTRATION RIGHTS....................................................................................4
SECTION 2.1 DEMAND REGISTRATIONS............................................................................4
SECTION 2.2 PIGGYBACK REGISTRATIONS.........................................................................6
SECTION 2.3 LOCK-UP PERIOD FOR THE COMPANY AND OTHERS.......................................................8
SECTION 2.4 REGISTRATION PROCEDURES.........................................................................9
SECTION 2.5 UNDERWRITTEN OFFERINGS.........................................................................14
SECTION 2.6 REGISTRATION EXPENSES..........................................................................15
SECTION 2.7 INDEMNIFICATION................................................................................16
SECTION 2.8 RULE 144.......................................................................................19
ARTICLE III MISCELLANEOUS........................................................................................19
SECTION 3.1 REPRESENTATIONS AND WARRANTIES.................................................................19
SECTION 3.2 NO CONFLICT....................................................................................19
SECTION 3.3 SUCCESSORS AND ASSIGNS.........................................................................19
SECTION 3.4 GOVERNING LAW..................................................................................20
SECTION 3.5 REMEDIES.......................................................................................20
SECTION 3.6 SEVERABILITY...................................................................................20
SECTION 3.7 AMENDMENT AND MODIFICATION.....................................................................20
SECTION 3.8 NOTICES........................................................................................20
SECTION 3.9 ENTIRE AGREEMENT...............................................................................22
SECTION 3.10 COUNTERPARTS...................................................................................22
SECTION 3.11 HEADINGS.......................................................................................23
-i-
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
October 17, 2000, by and between Hewlett-Packard Europe B.V., a corporation
organized under the laws of The Netherlands ("PURCHASER"), and Indigo N.V., a
corporation organized under the laws of The Netherlands (the "COMPANY").
Except as otherwise indicated herein, capitalized terms have the meaning
ascribed to them in ARTICLE I.
W I T N E S S E T H:
WHEREAS, Hewlett-Packard Company, a Delaware corporation and the parent
of Purchaser ("Parent"), and the Company have previously entered into an OEM
Agreement and a Jericho Co-development Agreement, each dated September 13, 2000,
pursuant to which Parent and the Company have entered into certain OEM
arrangements and agreed to cooperate in a joint development project as more
fully set forth in the Jericho Co-development Agreement;
WHEREAS, Purchaser and the Company have previously entered into a Stock
Purchase Agreement, dated as of September 13, 2000 (the "Stock Purchase
Agreement"), pursuant to which Purchaser has agreed to purchase, or cause a
newly formed subsidiary of Purchaser ("Sub") to purchase, from the Company, and
the Company has agreed to issue and sell to Purchaser or Sub, 14,814,814 Common
Shares (as defined in the Stock Purchase Agreement), subject to the terms and
conditions set forth therein;
WHEREAS, the Company proposes to grant to Purchaser or Sub, and
Purchaser proposes to receive, or that Sub receive, from the Company, an
Acquisition Warrant and a Performance Warrant (the "Warrants") entitling
Purchaser to purchase Common Shares, subject to the terms and conditions set
forth therein; and
WHEREAS, the Stock Purchase Agreement provides for the Company and
Purchaser to enter into this Agreement to provide for certain registration
rights for the benefit of Purchaser and its permitted assigns.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"AFFILIATE" as applied to any Person, means any other Person directly
or indirectly controlling, controlled by or under common control with that
Person. The term
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of power to direct the management
and policies of that Person, whether through voting power, by contract or
otherwise.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"BOARD" means the supervisory board of the Company.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in the State of New York are authorized or obligated to
close.
"CLOSING DATE" has the meaning set forth in the Stock Purchase
Agreement.
"COMBINED BOARD" means the supervisory board and the management board
of the Company.
"COMMON SHARES" means the common shares, par value NLG 0.04 per share,
of the Company, or any other security or securities issued or issuable upon
exercise of the Warrants.
"COMPANY" has the meaning set forth in the preamble hereto and shall
include the Company's successors by merger, acquisition, reorganization or
otherwise.
"DEMAND NOTICE" has the meaning set forth in SECTION 2.1(e).
"DEMAND PERIOD" has the meaning set forth in SECTION 2.1(d).
"DEMAND REGISTRATIONS" has the meaning set forth in SECTION 2.1(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and any rules and regulations promulgated thereunder, all as the same shall be
in effect from time to time.
"EQUITY SECURITIES" means any class of capital stock of, or other
profit or voting interests in, the Company and all securities convertible into
or rights to purchase capital stock of or such interests in the Company, if any,
and any and all other equity securities of the Company or securities convertible
into or exchangeable for such securities or issued as a distribution with
respect to or in exchange for such securities; provided that Equity Securities
shall not include any Equity Securities issued pursuant to an employee stock
incentive or other similar employee benefit plan.
A "HOLDER" or "HOLDERS" means Purchaser, Sub and any of its permitted
assigns under the Stock Purchase Agreement or Warrants.
"INDEMNIFIED PARTIES" has the meaning set forth in SECTION 2.7(a).
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"LONG-FORM REGISTRATIONS" has the meaning set forth in SECTION 2.1(a).
"LOSS" or "LOSSES" has the meaning set forth in SECTION 2.7(a).
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" has the meaning set forth in SECTION 2.4(a)(xx).
"PERSON" means any individual, firm, limited liability company or
partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"PIGGYBACK REGISTRATION" has the meaning set forth in SECTION 2.2(a).
"PROSPECTUS" means the prospectus included in any Registration
Statement as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and all other amendments and supplements
to the prospectus, including post-effective amendments and all other material
incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" means (a) any Common Shares purchased by
Purchaser or Sub pursuant to the Stock Purchase Agreement, (b) any Common Shares
issued or issuable upon any exercise of all or a portion of the Warrants that
have vested and (c) any Common Shares that may be issued or distributed or be
issuable in respect of any Common Shares referred to in clause (a) or (b) above
by way of stock dividend, stock split or other distribution, merger,
consolidation, exchange offer, recapitalization or reclassification or similar
transaction; PROVIDED, HOWEVER, that any such Registrable Securities shall cease
to be Registrable Securities to the extent (i) a Registration Statement with
respect to the sale of such Registrable Securities has been declared effective
under the Securities Act and such Registrable Securities have been disposed of
in accordance with the plan of distribution set forth in such Registration
Statement or (ii) such Registrable Securities are sold pursuant to Rule 144
promulgated under the Securities Act (or any similar rule then in effect). The
number of shares of "Registrable Securities then outstanding" shall be
determined by the aggregate of the number of Common Shares that are outstanding
and the number of Common Shares issuable upon any exercise of all or a portion
of the vested Warrants which are Registrable Securities.
"REGISTRATION" means a registration of the Company's securities for
sale to the public under a Registration Statement.
"REGISTRATION EXPENSES" has the meaning set forth in SECTION 2.6(a).
"REGISTRATION STATEMENT" means any registration statement of the
Company filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the Securities Act, including the Prospectus, amendments and
supplements to such registration
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statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
rules and regulations promulgated thereunder, all as the same shall be in effect
from time to time.
"SHAREHOLDERS' AGREEMENT" has the meaning set forth in the Stock
Purchase Agreement.
"SHORT-FORM REGISTRATIONS" has the meaning set forth in SECTION 2.1(a).
"STOCK PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"UNDERWRITTEN OFFERING" means a Registration in which securities of the
Company are sold to an underwriter on a firm commitment basis for reoffering to
the public.
"WARRANTS" has the meaning set forth in the preamble hereto.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 DEMAND REGISTRATIONS.
(a) DEMAND BY HOLDERS. At any time that Purchaser is permitted to
transfer or cause to be transferred Common Shares to a third party pursuant to
the Shareholders' Agreement, and as long as holders of Registrable Securities
hold in the aggregate at least 2.5% of the issued and outstanding Common Shares
at the time of such determination, and, subject to Section 2.1(b), the holders
of the Registrable Securities then outstanding may request a Registration of (i)
all or any portion of their Registrable Securities on Form F-3 (or any successor
form thereto) ("SHORT-FORM REGISTRATIONS") or all or any portion of their
Registrable Securities on Form F-1 (or any successor form thereto) ("LONG-FORM
REGISTRATIONS") if a Short-Form Registrations is not available. Any such
requested Registrations are referred to herein as "DEMAND REGISTRATIONS." Each
request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering and shall describe the nature or method of the
proposed offer and sale thereof.
(b) DEMAND REGISTRATIONS. The holders of Registrable Securities shall
be entitled to request two Demand Registrations. The Company shall pay all
Registration Expenses related to the two Demand Registrations. A Registration
shall not count as a Demand Registration until it has become effective, unless
it does not become effective due to the withdrawal of the Registrable Securities
by the holders thereof or a failure to reach agreement on price with the
underwriters in which event such registration shall count as a Demand
Registration unless the holders of Registrable Securities pay all Registration
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Expenses. Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. The Company shall use its
best efforts to make Short-Form Registrations on Form F-3 available for the sale
of Registrable Securities.
(c) LIMITATION ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of (i) an Underwritten Offering in which all holders of Registrable
Securities were notified of their "piggyback" rights pursuant to SECTION 2.2, or
(ii) any other Demand Registration. In addition, the Company may postpone (upon
written notice to all holders of Registrable Securities) for up to 120 days the
filing or the effectiveness of a Registration Statement in respect of a Demand
Registration (but no more than once in any period of 12 consecutive months) if
the Board determines in good faith and in its reasonable judgment that effecting
the Demand Registration would have a material adverse affect on any proposal or
plan by the Company to engage in any material acquisition or disposition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or other similar transaction. In the event of a
postponement by the Company of the filing or effectiveness of a Registration
Statement in respect of a Demand Registration, the holders making such Demand
Registration shall have the right to withdraw such Demand Registration and, if
such Demand Registration is withdrawn, such Demand Registration shall not count
as one of the Demand Registrations hereunder.
(d) EFFECTIVE REGISTRATION. The Company shall be deemed to have
effected a Demand Registration if the applicable Registration Statement with
respect to such Demand Registration is declared effective by the SEC and remains
effective for not less than 180 days (or such shorter period as will terminate
when all Registrable Securities covered by such Registration Statement have been
sold or withdrawn), or, if such Registration Statement relates to an
Underwritten Offering, such longer period as in the opinion of counsel for the
underwriter or underwriters a Prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer (in
either case, such period being the "DEMAND PERIOD"). No Demand Registration
shall be deemed to have been effected if (i) during the Demand Period such
Registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court or (ii) the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such Registration are not satisfied other than by reason
of a wrongful act or misrepresentation of an applicable underwriting agreement
by any of the holders of Registrable Securities.
(e) UNDERWRITTEN OFFERING. If the holders of a majority of the
Registrable Securities then outstanding so elect, the offering of Registrable
Securities pursuant to such Demand Registration shall be in the form of an
Underwritten Offering. If any offering pursuant to a Demand Registration
involves an Underwritten Offering, the holders of a majority of the Registrable
Securities then outstanding shall have the right in their sole discretion to
select the managing underwriter or underwriters to effect the offering, which
managing underwriter or underwriters shall be reasonably satisfactory to the
Company.
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(f) PRIORITY OF SECURITIES REGISTERED PURSUANT TO DEMAND REGISTRATIONS.
The Company shall not include any securities other than Registrable Securities
in a Demand Registration, except with the written consent of the holders of the
majority of the Registrable Securities then outstanding sought to be registered
pursuant to such Demand Registration. If the managing underwriter or
underwriters of a Demand Registration advise the Company in writing (with a copy
to each selling holder of Registrable Securities) that, in its opinion, the
number of securities requested to be included in such Demand Registration
(including securities of the Company for its own account or for the account of
other Persons which are not holders of Registrable Securities) exceeds the
number which can be sold in such offering without being likely to have a
significant adverse effect on the price, timing or distribution of the
securities offered or the market for the Company's Equity Securities, the
Company will include in such Registration the Registrable Securities sought to
be registered therein and only such lesser number of securities for the account
of the Company or other Persons that are not holders of Registrable Securities
as shall, in the opinion of the managing underwriter or underwriters, not be
likely to have such an effect. In the event that, despite the elimination of all
of the shares of Equity Securities to be offered for the account of the Company
in such Registration pursuant to the immediately preceding sentence, the number
of Registrable Securities to be included in such Demand Registration continues
to exceed the number which, in the opinion of the managing underwriter or
underwriters can be sold without having the adverse effect referred to above,
then the securities to be included in such Registration shall be (i) the number
of Registrable Securities that, in the opinion of such underwriter or
underwriters, can be sold without having such adverse effect, allocated pro rata
among the holders which have requested to be included in such Registration,
based on the securities requested to be included (provided that any securities
thereby allocated to any such holder that exceed such person's request will be
reallocated among the remaining requesting holders of securities in like manner)
and (ii) second, and only if all of the Registrable Securities referenced in
CLAUSE (i) have been included, any other securities eligible for inclusion in
such Demand Registration.
SECTION 2.2 PIGGYBACK REGISTRATIONS.
(a) PARTICIPATION. If the Company at any time proposes to file a
Registration Statement under the Securities Act with respect to any offering of
its securities for its own account or for the account of any other Person (other
than (i) a Registration under SECTION 2.1, (ii) a Registration of securities
solely relating to a dividend reinvestment plan or an offering and sale to
employees or directors of the Company pursuant to any employee stock plan or
other employee benefit plan arrangement, including any Registration on Form S-8
(or any successor form thereto) or (iii) a Registration of securities issued
solely in an exchange offer, acquisition or business combination including any
Registration on Form F-4 (or any successor form thereto)), then, as soon as
practicable (but in no event less than 20 Business Days prior to the proposed
date of filing such Registration Statement), the Company shall give written
notice of such proposed filing to all holders of Registrable Securities and such
notice shall offer the holders of such Registrable Securities the opportunity to
register such number of Registrable Securities as each such holder may request
in writing (a "PIGGYBACK REGISTRATION"). Subject to SECTION 2.2(b), the Company
shall include in such Registration
6
Statement all Registrable Securities requested within seven Business Days after
the receipt by the holder of any such notice (which request shall specify the
aggregate amount of Registrable Securities intended to be disposed of by such
holder) to be included in the Registration Statement for such offering pursuant
to a Piggyback Registration; PROVIDED, HOWEVER, 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
Piggyback Registration, the Company shall determine for any reason not to
register or to delay registration of such securities, then the Company may, at
its election, give written notice of such determination to each holder of
Registrable Securities and, thereupon, (A) 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 holders of Registrable Securities entitled to
request that such Registration be effected as a Demand Registration under
SECTION 2.1, and (B) in the case of a determination to delay registering and in
the absence of a request for a Demand Registration, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. If the offering pursuant to such Registration
Statement is to be underwritten, then each holder making a request for a
Piggyback Registration pursuant to this SECTION 2.2(a) must participate in such
Underwritten Offering. If the offering pursuant to such Registration Statement
is to be on any other basis, then each holder making a request for a Piggyback
Registration pursuant to this SECTION 2.2(a) must participate in such offering
on such basis. Each holder of Registrable Securities shall be permitted to
withdraw all or part of such holder's Registrable Securities from a Piggyback
Registration at any time prior to the effective date thereof.
(b) PRIORITY OF PIGGYBACK REGISTRATION. If the managing underwriter or
underwriters of any proposed Underwritten Offering in a Piggyback Registration
informs the Company and the holders of such Registrable Securities in writing
that the total amount of securities which such holders and any other persons or
entities intend to include in such offering exceeds the number which can be sold
in such offering so as to have a significant adverse effect on the price, timing
or distribution of the securities offered in such offering or the market for the
Company's Equity Securities, then the securities to be included in such
Registration shall be (i) first, 100% of the securities that the Company
proposes to sell for its own account, and (ii) second, and only if all the
securities referenced in CLAUSE (i) have been included, the number of
Registrable Securities that, in the opinion of such underwriter or underwriters,
can be sold without having such adverse effect, allocated pro rata among the
holders which have requested to be included in such Registration, based on the
securities requested to be included (provided that any securities thereby
allocated to any such holder that exceed such person's request will be
reallocated among the remaining requesting holders of securities in like manner)
and (iii) third, and only if all of the Registrable Securities referenced in
CLAUSES (i) AND (ii) have been included, any other securities eligible for
inclusion in such Registration.
(c) NO EFFECT ON DEMAND REGISTRATIONS. No Registration of Registrable
Securities effected pursuant to a request under this SECTION 2.2 shall be deemed
to have been
7
effected pursuant to SECTION 2.1 or shall relieve the Company of its obligations
under SECTION 2.1.
(d) OTHER REGISTRATIONS. If the Company has previously filed a
Registration Statement with respect to Registrable Securities pursuant to
SECTION 2.1 or pursuant to this SECTION 2.2, and if such previous Registration
Statement has not been withdrawn or abandoned, the Company shall not file or
cause to be effected any other Registration of any of its Equity Securities
(except pursuant to Registrations relating to Company employee benefit plans,
exchange offers by the Company or a merger or acquisition of a business or
assets by the Company, including, without limitation, a Registration Statement
on Form S-8 or Form F-4 (or any successor forms thereto)), whether on its own
behalf or at the request of any holder or holders of such Equity Securities,
until a period of at least 180 days has elapsed from the effective date of such
previous Registration Statement.
(e) TERMINATION. The rights of the holders under this Section 2.2 shall
terminate with respect to such Common Shares as can be sold pursuant to Rule
144(k) of the Securities Act or a successor provision.
SECTION 2.3 LOCK-UP PERIOD FOR THE COMPANY AND OTHERS. In the case of an
Underwritten Offering, the Company agrees, if requested by the managing
underwriters in such Underwritten Offering, not to effect any public sale or
distribution of any Equity Securities the same as or similar to those being
registered during the period beginning seven days before, and ending 120 days
(or such lesser period as may be permitted by such underwriter) after, the
effective date of the Registration Statement filed in connection with such
Registration (except, in each case, as part of such Underwritten Offering, if
permitted, or pursuant to Registrations relating to Company employee benefit
plans, exchange offers by the Company or a merger or acquisition of a business
or assets by the Company, including, without limitation, a Registration
Statement on Form S-8 or Form F-4 (or any successor forms thereto)); PROVIDED,
HOWEVER, that the Company's obligation under this sentence is subject to the
holders of Registrable Securities in such offering agreeing to be bound by the
same sales restrictions applicable to the Company. The Company agrees to use all
reasonable efforts to obtain from each holder of restricted securities (other
than holders of Registrable Securities) of the Company the same as or similar to
those being registered by the Company, or any restricted securities convertible
into or exchangeable or exercisable for any of its securities, an agreement not
to effect any public sale or distribution of such securities (other than
securities purchased in a public offering) during any such period referred to in
this paragraph, except as part of any such Registration if permitted. Without
limiting the foregoing, if after the date hereof the Company grants any Person
(other than a holder of Registrable Securities) any rights to demand or
participate in, a Registration pursuant to SECTION 3.2, the Company agrees that
the agreement with respect thereto shall include such Person's agreement as
contemplated by the previous sentence.
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SECTION 2.4 REGISTRATION PROCEDURES.
(a) ACTIONS BY COMPANY. Whenever any holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, whether pursuant to SECTION 2.1 or SECTION 2.2, the Company shall use
its best efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof as expeditiously as possible, and pursuant thereto the
Company will as expeditiously as possible:
(i) before filing a Registration Statement or Prospectus, or any
amendments or supplements thereto, to the extent that a holder of
Registrable Securities is participating in such registration and in
connection therewith, (A) furnish to the underwriters, if any, and to the
holders of the Registrable Securities covered by such Registration
Statement, copies of all documents prepared to be filed, which documents
will be subject to the review of such underwriters and such holders and
their respective counsel and (B) not file any Registration Statement or
Prospectus or amendments or supplements thereto to which the holders of a
majority of Registrable Securities then outstanding covered by such
Registration Statement or the underwriters, if any, shall reasonably object
within 5 days;
(ii) prepare and, in the case of a Demand Registration, no later than
45 days after a request for a Demand Registration, file with the SEC a
Registration Statement relating to the Registrable Securities including all
exhibits and financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective under the Securities Act;
(iii) prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement and supplements to the Prospectus
as may be (A) reasonably requested by the holders of a majority of the
participating Registrable Securities then outstanding, (B) reasonably
requested by any participating holder (to the extent such request relates
to information relating to such holder), or (C) necessary to keep such
Registration effective for the Demand Period;
(iv) promptly notify the selling holders of Registrable Securities and
the managing underwriter or underwriters, if any, as soon as reasonably
practicable after notice thereof is received by the Company (A) when the
Registration Statement or any amendment thereto has been filed or becomes
effective, when the Prospectus or any amendment or supplement to the
Prospectus has been filed, and to furnish such selling holders and managing
underwriter or underwriters, if any, with copies thereof, (B) of any
written comments by the SEC or any request by the SEC or any other federal
or state governmental authority for amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (C)
of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the use
of any preliminary or final Prospectus or the initiation or threatening of
any proceedings for such purposes, (D) if, at any time,
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the representations and warranties of the Company contemplated by
SECTION 2.4(a)(xiii) below cease to be true and correct in all material
respects and (E) of any notification with respect to the suspension of
the qualification of the Registrable Securities for offering or sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(v) promptly notify each selling holder of Registrable Securities and
the managing underwriter or underwriters, if any, when the Company becomes
aware of the happening of any event as a result of which the Registration
Statement or the Prospectus included in such Registration Statement (as
then in effect) contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein (in the
case of the Prospectus and any preliminary Prospectus, in light of the
circumstances under which they were made) not misleading or, if for any
other reason it shall be necessary during such time period to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the Securities Act and, in either case as promptly as reasonably
practicable thereafter, prepare and file with the SEC, and furnish without
charge to the selling holders and the managing underwriter or underwriters,
if any, an amendment or supplement to such Registration Statement or
Prospectus which will correct such statement or omission or effect such
compliance;
(vi) make every reasonable effort to prevent or obtain the withdrawal
of any stop order or other order suspending the use of any preliminary or
final Prospectus or suspending any qualification of the Registrable
Securities at the earliest possible moment;
(vii) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an
Underwritten Offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters and the holders of a majority of the Registrable Securities
then outstanding being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being sold to, and the purchase price being paid
therefor by, such underwriter or underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as reasonably practicable after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling holder of Registrable Securities and
each managing underwriter, if any, without charge, as many conformed copies
as such holder or managing underwriter may reasonably request of the
Registration Statement and any amendment or post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits
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(excluding those incorporated by reference unless such documents are not
publicly and electronically available);
(ix) deliver to each selling holder of Registrable Securities and each
managing underwriter, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such holder or managing underwriter may reasonably
request (it being understood that the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto), and such other
documents as such selling holder or managing underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities by such holder or underwriter;
(x) on or prior to the date on which the Registration Statement is
declared effective, use its best efforts to register or qualify, and
cooperate with the selling holders of Registrable Securities, the managing
underwriter, underwriters or agent, if any, and their respective counsel,
in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "Blue Sky" laws of
each state and other jurisdiction of the United States as any such selling
holder, underwriter or agent, if any, or their respective counsel,
reasonably request in writing and do any and all other acts or things
reasonably necessary or advisable to keep such registration or
qualification in effect for so long as such Registration Statement remains
in effect and so as to permit the continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution
of the Registrable Securities covered by the Registration Statement;
PROVIDED that the Company will not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify or to take any action which would subject it to taxation or general
service of process in any such jurisdiction;
(xi) cooperate with the selling holders of Registrable Securities and
the managing underwriter, underwriters or agent, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least one (1)
Business Day prior to any sale of Registrable Securities to the
underwriters;
(xii) not later than the effective date of the applicable Registration
Statement, provide the applicable transfer agent with printed certificates
for the Registrable Securities which are in a form eligible for deposit
with The Depository Trust Company or such other form as is reasonably
requested by the selling holders;
(xiii) in connection with an Underwritten Offering make such
representations and warranties to the holders of Registrable Securities
being registered, and the
11
underwriters or agents, if any, in form, substance and scope as are
customarily made by issuers in underwritten public offerings;
(xiv) in connection with an Underwritten Offering enter into such
customary agreements (including underwriting and indemnification
agreements) and take all such other actions as the holders of at least a
majority of any Registrable Securities then outstanding being sold or the
managing underwriter or agent, if any, reasonably request in order to
expedite or facilitate the registration and disposition of such Registrable
Securities;
(xv) in connection with an Underwritten Offering obtain for delivery to
the holders of Registrable Securities being registered and to the
underwriter, underwriters or agent, if any, an opinion or opinions from
counsel for the Company dated the effective date of the Registration
Statement and, in the event of an Underwritten Offering, brought down to
the date of execution of the underwriting agreement (if different from such
effective date) and to the closing under the underwriting agreement, in
customary form, scope and substance, which counsel and opinions shall be
reasonably satisfactory to such holders, underwriters or agents and their
respective counsel;
(xvi) in connection with an Underwritten Offering obtain for delivery
to the Company and the underwriter, underwriters or agent, if any, with
copies to the holders of Registrable Securities (unless precluded by
applicable accounting rules), a "comfort" letter from the Company's
independent certified public accountants in customary form and covering
such matters of the type customarily covered by "comfort" letters and such
other matters as the managing underwriter or underwriters reasonably
request, dated the date of execution of the underwriting agreement and
brought down to the closing under the underwriting agreement;
(xvii) notify each seller of Registrable Securities and each
underwriter or agent, if any, participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD;
(xviii) use its best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security
holders, as soon as reasonably practicable (but not more than fifteen (15)
months) after the effective date of the Registration Statement, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act;
(xix) 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;
(xx) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by
the Company are then listed and, if not so listed, to be admitted for
quotation on The Nasdaq Stock Market
12
("NASDAQ") and, if admitted on Nasdaq, use its best efforts to secure
designation of all such Registrable Securities covered by such
registration statement as a "national market system security" within the
meaning of Rule 11Aa2-1 promulgated under the Exchange Act or, failing
that, to secure Nasdaq authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to maintain at
least two market makers with respect to such Registrable Securities
registered with the NASD;
(xxi) make available upon reasonable notice at reasonable times and for
reasonable periods for inspection by a representative appointed by a
majority of the sellers of such Registrable Securities then outstanding
covered by such Registration Statement, by any underwriter participating in
any disposition to be effected pursuant to such Registration Statement and
by any attorney, accountant or other agent retained by such sellers or any
such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees and the independent public
accountants who have certified its financial statements to make themselves
available at reasonable times and for reasonable periods to discuss the
business of the Company and to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in
connection with such Registration Statement as shall be necessary to enable
them to exercise their due diligence responsibility (subject to each party
referred to in this CLAUSE (xxi) entering into customary confidentiality
agreements in a form reasonably acceptable to the Company); and
(xxii) take such other actions as sellers of such Registrable
Securities holding a majority of the shares to be sold shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities.
(b) HOLDERS' INFORMATION. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities
and such other information relating to such holder and its ownership of
Registrable Securities as the Company may from time to time reasonably request
in writing. Each holder of Registrable Securities agrees to furnish such
information to the Company and to cooperate with the Company as necessary to
enable the Company to comply with the provisions of this Agreement. 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.
13
(c) DISCONTINUATION OF DISPOSITION. Each holder of Registrable
Securities agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in SECTION 2.4(a)(v), such holder
will forthwith discontinue disposition of Registrable Securities pursuant to
such Registration Statement until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by SECTION 2.4(a)(v), or until
it is advised in writing by the Company that the use of the Prospectus may be
resumed, and, if so directed by the Company, such holder 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 covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the Demand Period during which such
Registration Statement is required to be maintained effective shall be extended
by the number of days during the period from and including the date of the
giving of such notice and including the date when each seller of Registrable
Securities covered by such Registration Statement either receives the copies of
the supplemented or amended Prospectus contemplated by SECTION 2.4(a)(v) or is
advised in writing by the Company that the use of the Prospectus may be resumed.
SECTION 2.5 UNDERWRITTEN OFFERINGS.
(a) DEMAND REGISTRATIONS. If requested by the underwriters for any
Underwritten Offering requested by holders of Registrable Securities pursuant to
a Registration under SECTION 2.1, the Company shall enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the Company, holders of a
majority of the Registrable Securities then outstanding to be included in such
underwriting, and the underwriters, and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnities no less
favorable to the recipient thereof than those provided in SECTION 2.7. 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 conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such holders of Registrable Securities.
(b) PIGGYBACK REGISTRATIONS. If the Company proposes to register any of
its securities under the Securities Act as contemplated by SECTION 2.2 and such
securities are to be distributed in an Underwritten Offering through one or more
underwriters, the Company will, if requested by any holder of Registrable
Securities pursuant to SECTION 2.2 and subject to the provisions of SECTION
2.2(b), use its best efforts to arrange for such underwriters to include on the
same terms and conditions that apply to the other sellers in such Registration
all the Registrable Securities to be offered and sold by such holder among the
securities of the Company to be distributed by such underwriters in such
Registration. 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 any or all of the conditions precedent to the
obligations of such underwriters under such underwriting
14
agreement shall be conditions precedent to the obligations of such holders of
Registrable Securities.
(c) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. 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 by the Persons entitled to approve such arrangements 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; PROVIDED that no holder of
Registrable Securities included in any Underwritten Offering shall be required
to make any representations or warranties to the Company or the underwriters
(other than representations and warranties regarding such holder and such
holder's intended method of distribution) or to undertake any indemnification
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in SECTION 2.7.
SECTION 2.6 REGISTRATION EXPENSES.
(a) EXPENSES PAID BY COMPANY. Subject to Section 2.1(b), all expenses
incident to the Company's performance of or compliance with this Agreement will
be paid by the Company (and, in the case of the filing of a Registration
Statement, regardless of whether such Registration Statement becomes effective),
including without limitation (i) all registration and filing fees, and any other
fees and expenses associated with filings required to be made with the SEC or
the NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules and
regulations of the NASD), (ii) all fees and expenses of compliance with state
securities or "Blue Sky" laws (including fees and disbursements of counsel in
connection with "Blue Sky" qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a majority of the
Registrable Securities then outstanding being sold may designate), (iii) all
printing, duplicating, word processing, messenger, telephone, facsimile and
mailing and delivery expenses (including expenses of printing certificates for
the Registrable Securities in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses) for the Company, (iv) all printing,
mailing and delivery expenses incurred in the preparation and delivery of a
Registration Statement or Prospectus, (v) all fees and disbursements of counsel
for the Company and of all independent certified public accountants of the
Company (including the expenses of any special audit and cold comfort letters
required by or incident to such performance), (vi) Securities Act liability
insurance or similar insurance if the Company so desires or the underwriters so
require in accordance with then-customary underwriting practice, (vii) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or quotation of the Registrable Securities
on any inter-dealer quotation system, (viii) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, (ix) all fees
and expenses of any special experts retained by the Company in connection with
any Demand Registration or Piggyback Registration, (x) fees and expenses of
other Persons retained by the Company without limitation and (xi) in the case of
a Demand Registration only, reasonable fees and expenses of no more than one
counsel for
15
holders of the Registrable Securities (other than counsel to the Company) (all
such expenses being herein called "REGISTRATION EXPENSES"). The Company will, in
any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any audit and the fees and expenses of any
Person, including special experts, retained by the Company. The underwriting
discount and commissions paid to the underwriters in connection with any
registration shall be paid by the Company, the holders and any other selling
securities holders pro rata based on the number of shares of Equity Securities
sold by the Company, the holders and such other securities holders.
(b) EXPENSES NOT PAID BY COMPANY. Other than as provided in SECTION
2.6(a), the Company shall not be required to pay in any registration effected
under this Agreement any fees or disbursements of additional counsel of holders
of Registrable Securities or any fees and disbursements of underwriters not
customarily paid by the issuers or sellers of securities, including underwriting
discounts and commissions and transfer taxes, if any, attributable to the sale
of Registrable Securities and the fees and expenses of counsel to the
underwriters.
SECTION 2.7 INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. The Company will, and hereby agrees to,
indemnify and hold harmless, to the full extent permitted by law, each holder of
Registrable Securities, Purchaser, their respective affiliates and their
respective partners, owners, officers, directors, shareholders, employees,
advisors, agents, each other Person who participates as an underwriter, selling
broker, dealer manager, or similar securities industry professional in the
offering or sale of Registrable Securities, and each Person who controls (within
the meaning of the Securities Act or the Exchange Act) any of the foregoing
Persons (each, an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED
PARTIES"), from and against any and all losses, claims, damages, liabilities (or
actions or proceedings in respect thereof, whether or not such Indemnified Party
is a party thereto) and expenses, joint or several (including reasonable costs
of investigation and legal expenses) (each, a "LOSS" and collectively "LOSSES"),
arising out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act (including any
final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), or any related statute securities or "blue sky" applications 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 the case of a
Prospectus or preliminary Prospectus, in light of the circumstances under which
they were made) not misleading; PROVIDED, HOWEVER, that the Company shall not be
liable to a particular Indemnified Party in any such case to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by such Indemnified Party through an instrument duly executed by
such Indemnified Party, specifically stating that it is for use in the
preparation of such Registration Statement. This indemnity shall be in addition
to any liability the Company may otherwise have. Such indemnity shall remain
16
in full force and effect regardless of any investigation made by or on behalf of
such holder or any Indemnified Party and shall survive the transfer of such
securities by such holder.
(b) INDEMNIFICATION BY THE SELLING HOLDER OF REGISTRABLE SECURITIES. In
the event of Registration of any Registrable Securities of the Company under the
Securities Act pursuant to SECTIONS 2.1 or 2.2, each selling holder of
Registrable Securities agrees (severally and not jointly) to indemnify and hold
harmless, to the full extent permitted by law, the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act and the Exchange Act) from and against any Losses resulting from
any untrue statement of a material fact or any omission of a material fact
required to be stated in the Registration Statement under which such Registrable
Securities were registered under the Securities Act (including any final,
preliminary or summary Prospectus contained therein or any amendment thereof or
supplement thereto or any documents incorporated by reference therein), or
necessary to make the statements therein (in the case of a Prospectus or
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any written information furnished to the
Company through an instrument duly executed by such holder, specifically stating
that it is for inclusion in such Registration Statement and has not been
corrected in a subsequent writing prior to or concurrently with the sale of the
Registrable Securities. In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such holder under the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
PROVIDED, HOWEVER, that any Person entitled to indemnification hereunder shall
have the right to select and employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (A) the indemnifying party has agreed in writing
to pay such fees or expenses, (B) the indemnifying party shall have failed to
assume the defense of such claim within a reasonable time after receipt of
notice of such claim from the Person entitled to indemnification hereunder and
employ counsel reasonably satisfactory to such Person, (C) the indemnified party
has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, or (D) in the
reasonable judgment of any such Person, based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not
17
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent, but such consent may
not be unreasonably withheld; PROVIDED, that an indemnifying party shall not be
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnifying party other than financial obligations for which such indemnified
party will be indemnified hereunder. If the indemnifying party assumes the
defense, the indemnifying party shall have the right to settle such action
without the consent of the indemnified party; PROVIDED, HOWEVER, that the
indemnifying party shall be required to obtain such consent (which consent shall
not be unreasonably withheld) if the settlement includes any admission of
wrongdoing on the part of the indemnified party or any decree or restriction on
the indemnified party or its officers or directors. No indemnifying party shall
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 an unconditional release from all liability in
respect to such claim or litigation or which would impose any material
obligations on such indemnified party (given against an appropriate
cross-release). Except as provided above it is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time from all such indemnified party or
parties unless the employment of more than one counsel has been authorized in
writing by the indemnified party or parties.
(d) CONTRIBUTION. If for any reason the indemnification provided for in
SECTIONS 2.7(a) and 2.7(b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by SECTIONS 2.7(a) and 2.7(b),
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such Loss in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. 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 indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this SECTION 2.7(d) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
SECTION 2.7(d) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this SECTION 2.7(d) were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to in this SECTION 2.7(d). 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.
18
(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, promptly as and when bills are received
or Losses are incurred. In the event payment hereunder is determined to be
unavailable, any amounts paid hereunder shall be returned to the party making
such payment.
SECTION 2.8 RULE 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act, and it
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 (i) Rules 144 or
Regulation S under the Securities Act, as such rules may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the SEC. 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 such
requirements and, if not, the specifics thereof.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 REPRESENTATIONS AND WARRANTIES. Each party to this Agreement
represents and warrants to each other party to this Agreement that (a) all
action on the part of such party necessary for the authorization, execution,
delivery and performance of this Agreement has been taken and (b) this Agreement
is a legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms.
SECTION 3.2 NO CONFLICT. The Company represents and warrants that it is not
a party to, or otherwise subject to, any other agreement granting registration
rights to any other Person with respect to any Equity Securities, except as set
forth in the Disclosure Schedule (as defined in the Stock Purchase Agreement).
The Company shall not enter into any agreement which is inconsistent with or
that would in any way interfere with the rights of the holders of Registrable
Securities hereunder. In the event that any such conflict should nevertheless
exist, the provisions of this Agreement shall control to the extent permitted
under applicable law. Without limiting the foregoing, the Company shall not
grant to any Persons the right to request the Company to register any Equity
Securities without the prior written consent of the holders of a majority of the
Registrable Securities then outstanding; PROVIDED that the Company may grant
rights to other Persons to participate in Piggyback Registrations so long as
such rights are subordinate to the rights of the holders of Registrable
Securities with respect to such Piggyback Registrations as set forth in SECTION
2.2.
SECTION 3.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns, regardless of whether or not any such successors,
assigns or holders have delivered an undertaking or assumption with respect to
this Agreement. In addition, whether or not any express assignment has been
made, the provisions of this Agreement that are for the benefit of
19
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
SECTION 3.4 GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of New York applicable
to contracts entered into and performed entirely within that state. The United
States District Court for the District of New York and New York state court
shall be the sole jurisdictions and venues for any dispute arising directly or
indirectly from this Warrant. Each of the parties consents to the jurisdiction
and venue of any such court and waives any argument that any such court does not
have jurisdiction over such party or such dispute or that venue in any such
forum is not appropriate or convenient.
SECTION 3.5 REMEDIES. No remedy conferred upon the holders of Registrable
Securities is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing by law. The parties hereto
specifically acknowledge that monetary damages are not an adequate remedy for
violations of this Agreement, and that any party hereto may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other relief as such court may deem just and proper in
order to enforce this Agreement or prevent any violation hereof and, to the
extent permitted by applicable law and to the extent the party seeking such
relief would be entitled on the merits to obtain such relief, each party waives
any objection to the imposition of such relief.
SECTION 3.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity (and such provision will be
enforced to the greatest extent permitted by applicable law), without
invalidating the remainder of this Agreement.
SECTION 3.7 AMENDMENT AND MODIFICATION. This Agreement may not be amended
or modified, and waivers and consents to departures from the provisions hereof
may not be given, unless approved in writing by the holders of a majority of the
Registrable Securities then outstanding. No failure on the part of any party to
exercise, and no delay in exercising any right shall operate as a waiver
thereof, nor shall any single or partial exercise by any party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
SECTION 3.8 NOTICES. All notices, requests, demands and other
communications hereunder shall be given in writing and shall be: (a) personally
delivered; (b) sent by telecopier, facsimile transmission or other electronic
means of transmitting written documents; or (c) sent to the parties at their
respective addresses indicated herein by registered or certified U.S. mail,
return receipt requested and postage prepaid, or by nationally reputable
overnight courier service. The respective addresses to be used for all such
notices, demands or requests are as follows:
20
(a) If to the Company, to:
Indigo β.β.
β βββββββββββ
ββββ ββ ββββββββββ
βββ βββββββββββ
Attention: Legal Department
Telephone: ββ-ββ-βββ-ββββ
Telecopy: ββ-ββ-βββ-ββββ
with a copy to:
Indigo Electronic Printing Systems Ltd.
β.β. βββ βββ
ββββββ ββββββββ
βββββββ βββββ, Israel
Attention: General Counsel
Telephone: βββ-ββββ-ββββ
Telecopy: βββ-ββββ-ββββ
and to
ββββββ, ββββ & ββββββββ LLP
βββ ββββ ββββββ
βββ ββββ, ββ βββββ
Attention: ββββββ β. ββββββββ
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ.
(b) If to Purchaser, to:
Hewlett-Packard Company
(IF BY MAIL)
β.β. βββ ββ, ββ βββ
βββββ, ββ βββββ
(IF BY OTHER THAN MAIL)
βββββ βββββββ βββββββββ, ββ 310
βββββ, ββ βββββ
Attention: ββββ βββββββ
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ
with a copy to
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Hewlett-Packard Company
ββββ βββββββ ββββββ, ββββ-ββ
ββββ ββββ, ββββββββββ βββββ
Attention: Corporate Development Porfolio Manager
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ
and to
Hewlett-Packard Company
ββββ βββββββ ββββββ, ββββ-ββ
ββββ ββββ, ββββββββββ βββββ
Attention: General Counsel
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ
with a copy to
Skadden, Arps, Slate, βββββββ & ββββ LLP
βββ ββββββββββ ββββββ
ββββ ββββ, ββββββββββ βββββ
Attention: ββββββ β. ββββ
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party in
accordance with this Section. If personally delivered, such communication shall
be deemed delivered upon actual receipt; if electronically transmitted pursuant
to this paragraph, such communication shall be deemed delivered upon the
sender's receipt of electronic confirmation of such communication; if sent by
overnight courier pursuant to this paragraph, such communication shall be deemed
delivered upon receipt; and if sent by U.S. mail pursuant to this paragraph,
such communication shall be deemed delivered as of the date of delivery
indicated on the receipt issued by the relevant postal service, or, if the
addressee fails or refuses to accept delivery, as of the date of such failure or
refusal.
SECTION 3.9 ENTIRE AGREEMENT. This Agreement and the agreements referenced
herein constitute the full and entire understanding and agreement between the
parties with regard to the subject matter hereof.
SECTION 3.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which together
shall constitute one and the same instrument.
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SECTION 3.11 HEADINGS. The headings and captions contained herein are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
INDIGO N.V.
By: /s/ βββββββ βββββ
--------------------------------------
Name: βββββββ βββββ
Title: Chairman and
Chief Executive Officer
By: /s/ ββββββ β. ββββββ
--------------------------------------
Name: ββββββ β. ββββββ
Title: Managing Director