EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
this 23rd day of February, 1998, by and between XXXXXX XXXXXX, INC., a Delaware
corporation (the "Acquiror"), and Xxxxxxx X. Xxxx, acting by virtue of the
Merger Agreement (as hereinafter defined) as the attorney-in-fact and
representative (the "Stockholders' Representative") of the stockholders (the
"Company Stockholders") of TB&A Group, Inc., a Delaware corporation (the
"Company").
WHEREAS, on or about the date hereof, the Company Stockholders have or
will have become the owners of shares of Acquiror's common stock, par value
$0.01 per share ("Acquiror Common Stock");
WHEREAS, as part of the inducement for the parties hereto to enter into
and perform the Agreement and Plan of Merger (the "Merger Agreement"), dated as
of January ___, 1998, the parties hereto have agreed to enter into this
Agreement in order to provide, among other things, for certain registration
rights;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, agree as follows:
1. Term. This Agreement shall terminate on the date on which the Company
Stockholders could sell all of their Registerable Securities to the public in a
single transaction pursuant to the provisions of Rule 144 under the Securities
Act, provided, however, the indemnification provisions of Section 6 hereof shall
survive the termination of this Agreement.
2. Piggyback Registration Rights.
(a) If at any time or times Acquiror proposes to make a registered public
offering of any of its securities (whether for its own account or for the
account of others) under the Securities Act, Acquiror shall (i) promptly give
written notice of the proposed registration to each of the Company Stockholders
(such notice to include the number of shares the Company or other security
holders propose to register and, if known, the name of the proposed underwriter)
and (ii) use its best efforts to include in such registration (and any related
qualification under Blue Sky laws and/or other compliance) all the Registerable
Securities specified in a written request or requests made by any Company
Stockholder within 30 days after the receipt of such notice from the Company (a
"Piggyback Registration"). Such written request may specify all or a part of a
holder's Registerable Securities, provided, however, that (x) Acquiror will not
be required to effect a Piggyback Registration if it is registering securities
on Forms S-8 or S-4 (or any successor forms) or other SEC registration form not
suitable for inclusion of shares of selling stockholders for offer to the
public, and (y) Acquiror may withdraw any proposed registration statement or
offering of securities under this Section 2 at any time without liability to any
Company Stockholder, in which case Acquiror will not be required to effect a
registration.
(b) If a Piggyback Registration is an underwritten primary registration on
behalf of Acquiror, and the managing underwriter advises Acquiror in writing
that in the managing underwriter's opinion the number of securities requested to
be included in such registration exceeds the number that can be sold in such
offering without adversely affecting the marketability of the offering, Acquiror
shall include in such offering first, the securities of Acquiror proposed to be
sold by Acquiror and second, all other securities held by security holders,
including the Registerable Securities, requested to be included in such
registration by all other security holders (including the Company Stockholders),
pro rata among such security holders, based upon the number of shares requested
by each to be included in such registration. In addition, if a Piggyback
Registration is an underwritten primary registration on behalf of Acquiror, the
selling Company Stockholders agree to sell their Acquiror Common Stock, if
Acquiror so requests, on the same basis as the other securities included in such
registration are being sold and the underwriter or underwriters for such
registration shall be selected by Acquiror. If a Piggyback Registration is an
underwritten secondary registration on behalf of selling stockholders, and the
managing underwriter advises Acquiror in writing that in the managing
underwriter's opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering without
adversely affecting the marketability of the offering, then Acquiror shall
include in such offering first, the securities of Acquiror proposed to be sold
by the stockholders requiring or demanding that Acquiror effect such
registration and second, all other securities held by security holders,
including the Registerable Securities, requested to be included in such
registration by all other security holders (including the Company Stockholders),
pro rata among such security holders, based upon the number of shares requested
by each to be included in such registration.
3. Registration Procedures.
(a) The Company shall have no obligation to include Registerable Securities
owned by the Company Stockholders in a registration statement for a Piggyback
Registration, unless and until the Company Stockholders have furnished to
Acquiror all information and statements about or pertaining to the Company
Stockholders in such reasonable detail and on such timely basis as is reasonably
deemed by Acquiror to be necessary or appropriate for the preparation of the
registration statement.
(b) Whenever the Company Stockholders have requested that Registerable
Securities be registered in a Piggyback Registration, Acquiror shall keep each
Company Stockholder advised in writing as to the initiation of each registration
and as to the completion thereof. As expeditiously as reasonably possible,
Acquiror
shall:
(1) prepare and file with the SEC a registration statement with respect to
such Registerable Securities and use its reasonable best efforts, subject to
Section 2(a)(y), to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, Acquiror will furnish to one counsel selected
by the holders of a majority of the Registerable Securities covered by such
registration statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel);
(2) keep such registration statement effective for a period of not less
than nine months or until the Company Stockholders have completed the
distribution described in such registration statement, whichever occurs first,
and amend or supplement such registration statement and the prospectus contained
therein from time to time to the extent necessary to comply with the provisions
of the Securities Act and applicable state securities laws with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(3) furnish to the Company Stockholders the number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
contained in such registration statement (including each preliminary
prospectus), and such other documents as the Company Stockholders from time to
time may reasonably request;
(4) use its best efforts to register or qualify such shares under the state
blue sky or securities ("Blue Sky") laws of such jurisdictions as any Company
Stockholder reasonably requests, and to do any and all other acts and things
that may be reasonably necessary or advisable to enable the Company Stockholders
to consummate the disposition of such shares in such jurisdictions; provided,
however, that Acquiror will not be required to do any of the following: (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or otherwise required to be so qualified but for this Section 3(b), or
(ii) take any action which would subject it to the service of process in actions
other than those arising out of such registration;
(5) notify the Company Stockholders, at any time when a prospectus relating
to the Registerable Securities is required to be delivered under the Securities
Act, of the occurrence of any event as a result of which the prospectus included
in any such registration statement contains 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 in the light of the circumstances under
which they were made, not misleading, and prepare and furnish to such Company
Stockholders a reasonable number of copies of a supplement or amendment to the
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, the prospectus will not contain an untrue statement
of a material fact or omit to state any fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading;
(6) cause all such Registerable Securities to be listed on each securities
exchange on which similar securities issued by Acquiror are then listed and, if
not so listed, to be listed on the National Association of Securities Dealers
("NASD") Automated Quotation ("Nasdaq") system and, if listed on the Nasdaq
system, use its reasonable best efforts to secure designation of all such
Registerable Securities covered by such registration statement as a Nasdaq
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
or, failing that, to secure Nasdaq authorization for such Registerable
Securities;
(7) provide a transfer agent and registrar for all such Registerable
Securities (if Acquiror does not already have such an agent) not later than the
effective date of such registration statement;
(8) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registerable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registerable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(9) make available all financial and other records, pertinent corporate
documents and properties of Acquiror for inspection by, and cause Acquiror's
officers, directors, employees and independent accountants to supply all
information reasonably requested by, any seller of Registerable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter in connection with such registration statement who
executes any reasonable confidentiality agreement that may be reasonably
requested by Acquiror or who is bound by fiduciary duty or professional
responsibility to preserve the confidentiality thereof;
(10) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months beginning with the first day of Acquiror's first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(11) use its reasonable best efforts to cause such Registerable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registerable Securities.
4. Holdback Agreements.
(a) Each holder of Registerable Securities who is included in the
Registration Statement agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of Acquiror, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any underwritten Piggyback Registration (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Acquiror agrees (i) not to effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or Form S-4 or any successor form), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to use all reasonable efforts to cause each Person that, during the 30-day
period prior to the effective date of such Piggyback Registration, holds shares
of Acquiror Common Stock (or securities convertible into or exercisable or
exchangeable for Acquiror Common Stock) received from Acquiror in an amount
which, on a fully diluted basis, exceeds 1% of Acquiror Common Stock then
outstanding (on a fully diluted basis), to agree not to effect any public sale
or distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
5. Registration Expenses.
(a) If Registerable Securities are included in a registration statement for
a Piggyback Registration, then each selling Company Stockholder shall pay all
transfer taxes, if any, relating to the sale of its shares, the fees and
expenses of its own counsel, and its pro rata portion of any underwriting
discounts or commissions or the equivalent thereof.
(b) If Registerable Securities are included in a registration statement for
a Piggyback Registration, then except for the fees and expenses specified in
Section 5(a) hereof and except as provided below in this Section 5(b),
regardless of whether any registration statement becomes effective, Acquiror
shall pay all expenses incident to a Piggyback Registration, including, without
limitation, all registration, qualification and filing fees, fees and expenses
of compliance with Blue Sky laws, underwriting discounts, fees, and expenses
(other than the Company Stockholders' pro rata portion of any underwriting
discounts or commissions or the equivalent thereof), printing expenses,
messenger and delivery expenses, and fees and expenses of counsel for Acquiror
and all independent certified public accountants and other persons retained by
Acquiror.
6. Indemnification.
(a) The Acquiror agrees to indemnify, to the extent permitted by law, each
holder of Registerable Securities, each Person who controls such holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and their respective officers, directors, partners, employees, agents and
representatives, against all losses, claims, damages, liabilities and expenses
("Losses") arising out of or based upon any untrue or alleged untrue statement
of material fact contained in any registration statement, prospectus, or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of 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, except insofar as the same are caused by
or contained in any information furnished in writing to Acquiror by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after Acquiror has furnished such holder with a sufficient number of copies of
the same and except insofar as the same are caused by or contained in any
prospectus if such holder failed to send or deliver a copy of any subsequent
prospectus or prospectus supplement which would have corrected such untrue or
alleged untrue statement of material fact or such omission or alleged omission
of a material fact with or prior to the delivery of written confirmation of the
sale by such holder after Acquiror has furnished such holder with a sufficient
number of copies of the same. In connection with an underwritten offering,
Acquiror will indemnify such underwriters, each Person who controls such
underwriters (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and their respective officers, directors, partners,
employees, agents and representatives to the same extent as provided above with
respect to the indemnification of the holders of Registerable Securities.
(b) In connection with any registration statement in which holders of
Registerable Securities are participating, each such holder will furnish to
Acquiror in writing such information and affidavits as Acquiror reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify Acquiror, each
Person who controls Acquiror (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and their respective officers, directors,
partners, employees, agents and representatives against any Losses arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus, or form of prospectus, or
arising out of or based upon any omission or alleged omission of 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, to the
extent, but only to the extent, that such untrue or alleged untrue statement is
contained in, or such omission or alleged omission is required to be contained
in, any information so furnished in writing by such holder to Acquiror expressly
for use in such registration statement or prospectus and that such statement or
omission was relied upon by Acquiror in preparation of such registration
statement, prospectus or form of prospectus; provided, however, that such holder
of Registerable Securities shall not be liable in any such case to the extent
that the holder has furnished in writing to the Company prior to the filing of
any such registration statement or prospectus or amendment or supplement thereto
information expressly for use in such registration statement or prospectus or
any amendment or supplement thereto which corrected or made not misleading
information previously furnished to Acquiror, and Acquiror failed to include
such information therein. In no event shall the liability of any selling holder
of Registerable Securities hereunder be greater in amount than the dollar amount
of the proceeds (net of payment of all expenses) received by such holder upon
the sale of the Registerable Securities giving rise to such indemnification
obligation. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party.
(c) If any Person shall be entitled to indemnity hereunder, such
indemnified party shall give prompt notice to the party or parties from
which such indemnity is sought of the commencement of any action, suit,
proceeding or investigation or written threat thereof ("Proceeding") with
respect to which such indemnified party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure to so
notify the indemnifying parties shall not relieve the indemnifying parties
from any obligation or liability hereunder except to the extent that the
indemnifying parties have been prejudiced by such failure. The indemnifying
parties shall have the right, exercisable by giving written notice to an
indemnified party promptly after the receipt of written notice from such
indemnified party of such Proceeding, to assume, at the indemnifying
parties' expense, the defense of any such Proceeding, with counsel
reasonably satisfactory to such indemnified party; provided, however, that
an indemnified party or parties (if more than one such indemnified party is
named in any Proceeding) shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless the parties to such Proceeding include both the
indemnified party or parties and the indemnifying party or parties, and
there exists, in the opinion of the parties' counsel, a conflict between
one or more indemnifying parties and one or more indemnified parties, in
which case the indemnifying parties shall, in connection with any one such
Proceeding or separate but substantially similar or related Proceedings in
the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of not more than one
separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. If an indemnifying party
assumes the defense of such Proceeding, the indemnifying parties will not
be subject to any liability for any settlement made by the indemnified
party without its or their consent (such consent not to be unreasonably
withheld).
(d) If the indemnification provided for in this Section 6 is unavailable to
an indemnified party or is insufficient to hold such indemnified party
harmless for any Losses in respect of which this Section 6 would otherwise
apply by its terms, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the amount paid or payable by such indemnified
party as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and
such indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
taken by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action,
statement or omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent
such party would have been indemnified for such expenses under Section 6(c)
if the indemnification provided for in Section 6(a) or 6(b) was available
to such party. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(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 the immediately
preceding paragraph. Notwithstanding the provision of this Section 6(d), an
indemnifying party that is a selling holder of Registerable Securities
shall not be required to contribute any amount in excess of the amount by
which the net proceeds received by such indemnifying party exceeds the
amount of any damages that such indemnifying party has otherwise been
required to pay by reasons of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
7. Information by Holder. Each holder of Registerable Securities shall
furnish to the Acquiror and to the managing underwriter such information
regarding such holder and the distribution proposed by such holder as the
Acquiror or the managing underwriter may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in Section 3.
8. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of
restricted securities (as that term is defined in Rule 144(a)(3) under the
Securities Act) to the public without registration, Acquiror agrees to :
(a) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and the Exchange Act; and
(b) so long as any holder of Registerable Securities owns any restricted
securities, furnish to such holder upon request a written statement by the
Acquiror as to its compliance with the reporting requirements of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Acquiror, and such other reports and documents so
filed as a holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing such holder to sell any such securities
without registration.
9. Representations and Warranties of Acquiror. The Acquiror hereby
represents and warrants to the Company Stockholders, as of the date hereof,
as follows:
(a) Acquiror has the necessary corporate power and authority to enter into
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by Acquiror and the consummation by Acquiror of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of Acquiror
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement have been duly executed and delivered
by Acquiror and, assuming the due authorization, execution and delivery by
the Company Stockholders, constitute legal, valid and binding obligations
of Acquiror, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights generally and by the application of general
principles of equity.
(b) The execution and delivery of this Agreement by Acquiror do not, and
the performance by Acquiror of its obligations under this Agreement will
not, (i) conflict with or violate the certificate of incorporation or
bylaws of Acquiror, (ii) conflict with or violate any law, statute,
ordinance, rule, regulation, order, judgment or decree whether national or
foreign, applicable to Acquiror or its assets and properties, or (iii)
result in any breach of or constitute a default under any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which Acquiror is a party or by which
Acquiror is bound, or by which any of its properties or Assets is subject.
10. Definitions. The following terms shall have the following meanings for
purposes of this Agreement:
"Affiliate" means, with respect to a specified Person, any Person controlling,
controlled by or under common control with such Person.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time.
"Person" means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Registerable Securities" means all shares of Acquiror Common Stock held at the
relevant time by a Company Stockholder, and any other issued or issuable shares
of Acquiror Common Stock issued in connection with the Merger held by a Company
Stockholder at the relevant time, either at the time of initial issuance or
subsequently, by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registerable Securities, such securities
will cease to be Registerable Securities when they have been transferred in a
public offering registered under the Securities Act or in a sale made through a
broker, dealer or market-maker pursuant to Rule 144 under the Securities Act.
For purposes of this Agreement, a Company Stockholder will be deemed to be a
holder of Registerable Securities whenever such Company Stockholder has the
right to acquire directly or indirectly such Registerable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Company Stockholders" means all of the stockholders of the Company listed on
Schedule 1 hereto and any successor or permitted assignee of any of their rights
hereunder that holds Registerable Securities.
11. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the written consent of Acquiror and the Company Stockholders
holding a majority in amount of the outstanding Registerable Securities.
12. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery,
addressed as follows:
(i) if to Acquiror:
Xxxxxx Xxxxxx, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X.X. Xxxxxxx, Esq.
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X.X. Xxxxxx, Xx., Esq.
(ii) if to the Stockholders' Representative:
Xxxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telecopier No.: ( ) _________
Attention: __________________
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three (3) business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; or at the time
delivered, if delivered by an air courier guaranteeing overnight delivery.
13. Other Registration Rights. Except as provided in this Agreement,
Acquiror will not grant to any Persons the right to request Acquiror to
register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, which
are materially more favorable to such Persons than the rights granted to
the holders of Registerable Securities hereunder without the prior written
consent of the holders of at least a majority of the Registerable
Securities, unless Acquiror agrees to amend this Agreement to grant such
more favorable rights to the holders of Registerable Securities, in lieu of
the rights granted hereunder.
14. Transfer of Registration Rights; Successors and Assigns. A Company
Stockholder may not transfer or assign its rights hereunder, in whole or in
part, to a purchaser or other transferee of its Registerable Securities
without the prior approval of the Acquiror, except to an Affiliate of a
Company Stockholder.
15. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the
parties, including, without limitation and without the need for an express
assignment, Affiliates of the Company Stockholders. If any Company
Stockholder shall acquire Registerable Securities, in any manner, whether
by operation of law or otherwise, such Registerable Securities shall be
held subject to all of the terms of this Agreement, and by taking and
holding such Registerable Securities such Person shall be entitled to
receive the benefits hereof and shall be conclusively deemed to have agreed
to be bound by all of the terms and provisions hereof. 16. Severability.
Whenever possible, each provision of this Agreement shall 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 shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
17. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
18. Headings. The headings in this Agreement are for convenience reference
only and shall not limit or otherwise affect the meaning hereof.
19. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect
to the conflicts of laws provisions thereof.
20. Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in equity, shall
be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof
having jurisdiction.
21. Entire Agreement. This Agreement is intended by the parties as a final
expression or their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Registration Rights Agreement, or caused this Registration Rights Agreement to
be duly executed on its behalf, as of the date first written above.
XXXXXX XXXXXX, INC.
By: /s/ Xxxxx-Xxxxxx Xxxxxx
Name: Xxxxx-Xxxxxx Xxxxxx
Title: President and Chief Executive Officer
STOCKHOLDERS' REPRESENTATIVE
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
