Exhibit 99.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into this
12th day of March, 2003, by and between NOVATEL WIRELESS, INC., a Delaware
corporation (the "Company"), and the purchasers listed on the signature pages
hereto (the "Purchasers" and, collectively with the Company, the "Parties").
PRELIMINARY STATEMENTS
In connection with the consummation of the transactions contemplated by
that certain Securities Purchase Agreement (the "Purchase Agreement"), dated as
of March 12, 2003, between the Purchasers and the Company, the Company has
agreed to issue and sell to the Purchasers, (i) a secured convertible preferred
promissory note (the "Convertible Note"), convertible into shares of the Series
B Preferred Stock, which Series B Preferred Stock is convertible into shares of
Common Stock; (ii) additional shares of the Company's Series B Preferred Stock;
and (iii) certain warrants to purchase shares of the Company's Common Stock (the
"Warrants").
The obligations of the Purchasers to purchase the Convertible Note, the
Third Issuance Shares and the Warrants pursuant to the Purchase Agreement are
conditioned upon, among other things, the Parties' execution of this Agreement,
pursuant to which the Purchasers will be entitled to certain registration rights
with respect to the Common Stock issuable upon conversion of the Series B
Preferred Stock and the exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Certain Definitions.
1.1 Terms Defined in this Section. For purposes of this Agreement,
the following terms have the following meanings:
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banking institutions in New York, New York are required or
authorized by law to remain closed.
"Company Indemnified Parties" means the Company, its officers, directors,
employees, and agents, and each Person, if any, who controls the Company within
the meaning of either the Securities Act or the Exchange Act, and the officers,
directors, employees, and agents of the foregoing parties.
"Common Stock" means the Company's common stock, par value $0.001 per
share, and any securities into or for which such securities are converted or
exchanged by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, or any successor
federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Indemnified Party" means a Person claiming a right to indemnification
pursuant to Section 6 of this Agreement.
"Indemnifying Party" means a Person required to provide indemnification
pursuant to Section 6 of this Agreement.
"Losses" means any losses, claims, damages, or liabilities, and any
related legal or other fees and expenses.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, trust,
association, organization, or other entity.
"Prospectus" means the prospectus included in a Registration Statement as
of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, each as amended, and
each applicable prospectus supplement relating to the offering and sale of any
of the Registrable Securities pursuant to such Registration Statement.
"Registrable Securities" means:
(i) Common Stock issued or issuable upon the conversion of the
Series B Preferred Stock (including the Series B Preferred Stock issued upon
conversion of the Convertible Note); or
(ii) Common Stock issued or issuable upon the exercise of the
Warrants.
Securities that are Registrable Securities will cease to be Registrable
Securities:
(i) when a registration statement with respect to the sale of such
securities has become effective under the Securities Act and such securities
have been disposed of in accordance with such registration statement,
(ii) when such securities shall have been sold pursuant to Rule 144
or Rule 145 (or any successor provisions) under the Securities Act or in any
other transaction in which the applicable purchaser does not receive "restricted
securities" (as that term is defined for purposes of Rule 144 under the
Securities Act), or
(iii) when such securities cease to be outstanding.
"Registration Statement" means a registration statement (including the
related Prospectus) of the Company under the Securities Act on any form selected
by the Company for which the Company then qualifies and which permits the sale
thereunder of the number and type of Registrable Securities (and any other
securities of the Company) to be included therein in accordance with this
Agreement by the applicable sellers in the manner described therein. The term
"Registration Statement" shall also include all exhibits, financial statements,
and schedules and all documents incorporated by reference in such Registration
Statement when it becomes
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effective under the Securities Act, and in the case of the references to the
Registration Statement as of a date subsequent to the effective date, as amended
or supplemented as of such date.
"SEC" means the Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Selling Stockholder" means any Stockholder whose Registrable Securities
are included at the request of such Stockholder in any Registration Statement
pursuant to Section 2 or Section 3.
"Series B Preferred Stock" means the Company's Series B Convertible
Preferred Stock, par value $0.001 per share.
"Stockholder" means each Purchaser who has the right to acquire
Registrable Securities and any other Person:
(i) to whom any Registrable Securities or any rights to acquire any
Registrable Securities are transferred by any Person that was, immediately prior
to such transfer, a Stockholder,
(ii) who continues to hold such Registrable Securities or the right
to acquire such Registrable Securities,
(iii) to whom the transferring Stockholder has assigned any of its
rights under this Agreement, in whole or in part, in accordance with the
provisions of Section 8.6 of this Agreement with respect to such Registrable
Securities, and
(iv) who has executed a counterpart hereof in connection with the
transfer of such Registrable Securities.
"Stockholder Indemnified Parties" means each Selling Stockholder, its
officers, directors, employees, and agents, each Person (if any) who controls
such Selling Stockholder within the meaning of either the Securities Act or the
Exchange Act, and the officers, directors, employees, and agents of the
foregoing parties.
"Third-Party Demand Stockholder" means any Person having the right to
require that the Company effect a registration under the Securities Act of
securities owned by such Person, other than pursuant to this Agreement.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have the meanings set forth in the sections
indicated:
Term Section
---- -------
Demand Notice Section 2.2(a)
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Demand Registration Section 2.1
Demanding Stockholders Section 2.2(a)
Incidental Registration Section 3.1(a)
Initiating Stockholder Section 2.2(a)
Material Event Section 2.6(a)
Minimum Condition Section 2.2(d)
Registration Expenses Section 5.1
1.3 Terms Generally. The definitions in this Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context requires, any pronoun includes the corresponding masculine, feminine,
and neuter forms. The words "include," "includes," and "including" are not
limiting. Any reference in this Agreement to a "day" or number of "days"
(without the explicit qualification of "Business") shall be interpreted as a
reference to a calendar day or number of calendar days. If any action or notice
is to be taken or given on or by a particular calendar day, and such calendar
day is not a Business Day, then such action or notice shall be deferred until,
or may be taken or given on, the next Business Day.
2. Demand Registration.
2.1 Demand Registration Rights. Each Stockholder shall have the
right to require that the Company register under the Securities Act the offer or
sale of all or a portion of the Registrable Securities held by such Stockholder
on the terms and subject to the conditions and limitations set forth herein. The
registration of Registrable Securities under the Securities Act in accordance
with this Section 2 is referred to in this Agreement as a "Demand Registration."
The Stockholders shall be entitled to four Demand Registrations in the
aggregate.
2.2 Procedures for Demand Registrations.
(a) A Stockholder holding Registrable Securities may elect to
initiate a Demand Registration pursuant to this Section 2 by furnishing the
Company with a written notice (the "Demand Notice") specifying the number of
Registrable Securities that such Stockholder desires to have registered, and
such Stockholder's intended method or methods of distribution of all such
Registrable Securities. The Stockholder delivering a notice pursuant to the
preceding sentence is referred to as the "Initiating Stockholder." Within twenty
(20) days of its receipt of the Demand Notice, the Company shall notify the
Stockholders of its receipt of a Demand Notice. Each Stockholder may, within
thirty (30) days of the Company's receipt of the Demand Notice, deliver a
written notice to the Company specifying the number of shares that such
Stockholder (each, together with the Initiating Stockholder, a "Demanding
Stockholder") wishes to have registered, and such Stockholder's intended method
or methods of distribution of such securities. If Stockholders holding
Registrable Securities representing a majority of the outstanding Registrable
Securities provide the Company with written notice that they desire that such
Demand Registration not take place, the Company shall not be required to proceed
with such Demand Registration and, irrespective of whether the Company proceeds
with such registration, such registration shall not be deemed to have been a
Demand Registration for purposes of the limitations on the number of Demand
Registrations set forth in Section 2.1.
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(b) If the number of Registrable Securities that the Demanding
Stockholders desire to have registered (as specified in their notices pursuant
to Section 2.2(a)) does not satisfy the Minimum Condition (as set forth in
Section 2.2(d), below), then the Company will have no obligation to effect a
Demand Registration in response to such notices pursuant to Section 2.2(a)
(except as otherwise required in Section 2.4), but nothing herein will limit the
rights of the Stockholders to require on a subsequent occasion that the Company
effect a Demand Registration to which the Stockholders are entitled under
Section 2.1.
(c) On the thirty-first (31st) day following its receipt of a
Demand Notice, the Company will notify each Demanding Stockholder whether the
number of Registrable Securities that the Stockholders desire to have registered
(as specified in their notices pursuant to Section 2.2(a)) satisfies the Minimum
Condition.
(d) The "Minimum Condition" means that the number of
Registrable Securities that the Stockholders desire to have registered (as
specified in their notices pursuant to Section 2.2(a)) have an aggregate market
value on the date of the delivery of the Initiating Stockholder's notice
pursuant to Section 2.2(a) (before any underwriting or brokerage discounts and
commissions) of not less than seven hundred and fifty thousand dollars
($750,000); or
(e) Following the effectiveness of a Registration Statement
filed in connection with a Demand Registration, the Company will not be required
to file a Registration Statement for a subsequent Demand Registration within
four months after the date on which it received the Initiating Stockholder's
notice pursuant to Section 2.2(a) for the immediately preceding Demand
Registration.
(f) As soon as reasonably practicable after the Stockholders
have notified the Company that they desire to have registered a number of
Registrable Securities that satisfies the Minimum Condition, subject to Section
2.6(a) and Section 2.6(e), the Company will file with the SEC and use its
reasonable best efforts to cause to become effective as promptly as practicable
thereafter a Registration Statement that covers the Registrable Securities
requested to be registered in the manner set forth above. Subject to the
provisions of Section 2.3 below, each Registration Statement may also include
securities to be sold for the account of the Company, for Stockholders who do
not participate as Demanding Stockholders but who exercise their rights under
Section 3 below, or for any stockholder of the Company not holding Registrable
Securities.
2.3 Underwriters. One or more Demanding Stockholders owning more than 50%
of the Registrable Securities to be included in a Demand Registration shall
collectively have the right to select the lead book running managing underwriter
for any underwritten public offering in connection with a Demand Registration,
which lead managing underwriter shall be reasonably acceptable to the Company.
Each Demanding Stockholder electing to participate in a Demand Registration
involving an underwritten public offering shall, as a condition to the Company's
obligation under this Section 2 to include such Demanding Stockholder's
Registrable Securities in the Demand Registration, enter into and perform its
obligations under an underwriting agreement or other similar arrangement in
customary form with the lead underwriter of such offering.
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2.4 Shelf Registration. One or more Demanding Stockholders owning more
than 50% of the Registrable Securities may elect to require that a Demand
Registration be effected pursuant to a shelf registration under Rule 415 of the
Securities Act; provided, however, that (a) notwithstanding any thing to the
contrary herein, the Minimum Condition shall not apply; (b) the Company shall
cause a registration statement with respect to the first such shelf registration
to be filed within the (10) days following the Third Closing, (as defined in the
Purchase Agreement); (c) during the time any such shelf registration is
effective, the Company may require from time to time that the Selling
Stockholders refrain from selling pursuant to such registration under the
circumstances, in the manner, and for the time period described in Section 2.6;
and (d) the Company will not be required under this Section 2.4 to effect more
than two Demand Registrations as a shelf registration under Rule 415 of the
Securities Act. The Company will use its reasonable best efforts to cause any
Demand Registration effected as a shelf registration under Rule 415 of the
Securities Act to remain effective for a period ending on the earlier of (i) the
date that is a number of days after the effective date of the Registration
Statement equal to 730 plus the number of days that the Selling Stockholders
must refrain from selling pursuant to Section 2.6, and (ii) the date on which
all Registrable Securities covered by the Registration Statement have been sold
pursuant to the Demand Registration.
2.5 Limitation on Inclusion of Registrable Securities.
(a) If the book running managing underwriter of any underwritten
public offering in connection with a Demand Registration determines in good
faith that the aggregate number of Registrable Securities to be offered exceeds
the number of shares that could be sold without having an adverse effect on such
offering (including the price at which the Registrable Securities may be sold),
then the number of Registrable Securities to be offered for the accounts of the
Demanding Stockholders in such offering shall be reduced or limited, on a pro
rata basis, based on the respective numbers of Registrable Securities requested
to be included in such offering by all Demanding Stockholders, to the extent
necessary to reduce the total number of shares to be included in such offering
to the amount recommended by the book running managing underwriter; provided,
however, that if such registration includes securities other than Registrable
Securities of the Demanding Stockholders (whether for the account of the Company
or for any stockholder of the Company not exercising rights under this Section
2), such reduction shall be made:
(i) first, from securities held by Persons who are not
Stockholders and from securities being offered for the account of the Company,
allocated between the Company and such other Persons as the Company may
determine, subject to any agreements between the Company and such other Persons
as in effect as of the date hereof;
(ii) second, from the number of Registrable Securities
requested to be i*ncluded in such offering by Stockholders pursuant to their
rights under Section 3, on a pro rata basis, based on the number of Registrable
Securities requested to be included in the registration by Stockholders pursuant
to their rights under Section 3; and
(iii) last, from the number of Registrable Securities
requested to be included in such offering by the Demanding Stockholders, on a
pro rata basis, based on the
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number of Registrable Securities requested to be included in the registration by
the Demanding Stockholders.
(b) One or more Demanding Stockholders owning more than 50% of the
Registrable Securities to be included in a requested Demand Registration may
elect not to proceed with the registration if less than 75% of the Registrable
Securities requested to be registered by each of the Demanding Stockholders are
included in such registration. If Demanding Stockholders owning more than 50% of
the Registrable Securities to be included in a requested Demand Registration
elect not to proceed with the registration pursuant to this Section 2.5(b), the
Registration Statement for such registration shall be promptly withdrawn, a
Demand Registration shall not be deemed to have been effected for purposes of
this Agreement (including the limitations on the number of Demand Registrations
set forth in Section 2.1 above) and the Company shall bear the Registration
Expenses in connection with such Registration Statement.
2.6 Delay of Filing or Sales.
(a) The Company shall have the right, exercisable by giving notice
of the exercise of such right to the applicable Selling Stockholders, subject to
Section 2.6(b), at any time and from time to time, to delay filing or the
declaration of effectiveness of a Registration Statement or to require the
applicable Selling Stockholders not to sell any Registrable Securities pursuant
to an effective Registration Statement for a period not in excess of 120 days
beginning on the date on which such notice is given, or such shorter period of
time as may be specified in such notice or in a subsequent notice delivered by
the Company to such effect prior to or during the effectiveness of the
Registration Statement, if:
(i) the Company is engaged in discussions or negotiations with
respect to, or there otherwise is pending, any merger, acquisition, or other
form of business combination that is "probable" (within the meaning of the
Securities Act), any divestiture, tender offer, financing, or other event that,
in any such case, is material to the Company (any such activity or event, a
"Material Event"),
(ii) such Material Event would, in the judgment of the
Company's board of directors (after consultation with counsel), require
disclosure so as to permit the Registrable Securities to be sold in compliance
with law, and
(iii) disclosure of such Material Event would, in the judgment
of the Company's board of directors (after consultation with counsel), be
adverse to its interests.
(b) the Company may not delay the filing of a Registration Statement
or the sale of any Registrable Securities, whether pursuant to one or more
notices pursuant to Section 2.6(a), for more than an aggregate of 120 days
within any 12-month period.
(c) If the Company postpones its obligations under this Agreement by
reason of a Material Event as described in Section 2.6(a), any Selling
Stockholder will have the right to withdraw its Registrable Securities from the
applicable Demand Registration or Incidental Registration, by giving notice to
the Company at any time following delivery of the Company's notice pursuant to
Section 2.6(a).
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(d) No Stockholder may deliver a notice pursuant to the first
sentence of Section 2.2(a) during the period of any postponement pursuant to
Section 2.6(a) until the Company notifies all Stockholders of the end of such
Material Event or the expiration of the 120-day period described in Section
2.6(a).
(e) The Company shall have the right, exercisable by giving notice
of the exercise of such right to the applicable Selling Stockholders, to delay
filing or the declaration of effectiveness of a Registration Statement during
any period in which, as a result of the Company's failure to satisfy the
conditions in Rule 3-01(c) of Regulation S-X, the Company is required to include
in the Registration Statement audited financial statements of the Company prior
to the date on which such audited financial statements would normally have been
prepared in accordance with the Company's past practices and the SEC's periodic
reporting requirements.
2.7 Withdrawal.
(a) If (i) a Registration Statement filed pursuant to this Section 2
does not remain effective under the Securities Act for the period specified in
Section 2.8(a) due to a stop order, injunction, or other order of the SEC or
other governmental agency, and (ii) each of the Demanding Stockholders has not
sold at least two-thirds of its Registrable Securities registered under such
Registration Statement, then the Demanding Stockholders may elect to withdraw
such Registration Statement by written notice to the Company; and, in such an
event, such registration shall not be deemed to have been a Demand Registration
for purposes of the limitations on the number of Demand Registrations contained
in Section 2.1.
(b) Each Selling Stockholder may, no less than five (5) Business
Days before any Registration Statement becomes effective, withdraw some or all
of its Registrable Securities from inclusion in the Registration Statement. If
such withdrawals result in the Minimum Condition not being satisfied, then the
Company may withdraw such Registration Statement unless the remaining Demanding
Stockholders agree to include additional Registrable Securities in the
registration such that the Minimum Condition would be satisfied or agree to bear
the Registration Expenses incurred by the Company in connection with such
registration.
(c) If the Company withdraws a Registration Statement pursuant to
Section 2.7(b), then the requested registration shall be deemed to have been a
Demand Registration for purposes of the limitations on the number of Demand
Registrations contained in Section 2.1 unless
(i) at the time of a Stockholder's withdrawal of Registrable
Securities pursuant to Section 2.7(b), there has been a material adverse change
in the operating results, financial condition, or business of the Company that
was not publicly known at the time that the Minimum Condition was originally
satisfied; or
(ii) The Company has postponed its obligations under this
Agreement by reason of a Material Event as described in Section 2.6(a).
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2.8 Effectiveness of Registration Statement.
(a) In connection with any Demand Registration pursuant to this
Section 2, subject to Section 2.6, the Company will use its reasonable best
efforts to prepare and file with the SEC any amendments and supplements to the
Registration Statement and the Prospectus used in connection therewith, and to
take any other actions, that may be necessary to keep the Registration Statement
and the Prospectus effective, current, and in compliance with the provisions of
the Securities Act, until the sooner to occur of (i) the sale of all of the
Registrable Securities covered by such Registration Statement in accordance with
the intended methods of distribution thereof or (ii) the 90th day following the
effective date of such Registration Statement.
(b) A Demand Registration shall not be deemed to have been effected
for purposes of this Agreement (including the limitations on the number of
Demand Registrations set forth in Section 2.1 above) until the Registration
Statement therefor shall have been declared effective under the Securities Act
by the SEC (and is not then subject to any stop order, injunction, or other
order or requirement of the SEC or other governmental agency or court for any
reason) for the period specified in Section 2.8.
3. Incidental Registration.
3.1 Notice of Incidental Registration.
(a) Subject to Section 3.1(b) and Section 3.1(c), if the
Company at any time proposes to register under the Securities Act any shares of
the same class as any of the Registrable Securities (whether in an underwritten
public offering or otherwise and whether or not for the account of the Company
or for any stockholder of the Company, including Selling Stockholders
registering Registrable Shares in a Demand Registration pursuant to Section 2),
in a manner that would permit the registration under the Securities Act of
Registrable Securities for sale to the public, the Company will give written
notice to each Stockholder of its intention to do so not later than ten (10)
days prior to the anticipated filing date of the applicable Registration
Statement. If the proposed registration is intended to be a Demand Registration,
the Company shall give the notice described in the preceding sentence but only
to the Stockholders that did not previously elect to become Demanding
Stockholders pursuant to Section 2 with respect to such registration. Any
Stockholder may elect to participate in such registration on the same basis as
the planned method of distribution contemplated by the proposed registration by
delivering written notice of its election to the Company within five (5) days
after its receipt of the Company's notice pursuant to this Section 3.1(a). A
Stockholder's election pursuant to this Section 3.1(a) must (i) specify the
amount of Registrable Securities desired to be included in such registration by
such Stockholder and (ii) include any other information that the Company
reasonably requests be included in such registration statement. Upon its receipt
of a Stockholder's election pursuant to this Section 3.1(a), the Company will,
subject to Section 3.2, use its reasonable best efforts to include in such
registration all Registrable Securities requested to be included. Any
registration of Registrable Securities pursuant to this Section 3 is referred to
as an "Incidental Registration."
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(b) The Company shall have no obligation under this Section 3 with
respect to any registration effected pursuant to a registration statement on
Form S-4 (or any other registration statement registering shares issued in a
merger, consolidation, acquisition, or similar transaction) or Form S-8 or any
successor or comparable forms, or a registration statement filed in connection
with an exchange offer or any offering of securities solely to the Company's
existing stockholders or otherwise pursuant to a dividend reinvestment plan,
stock purchase plan, or other employee benefit plan.
(c) The Company shall have no obligation under this Section 3 with
respect to any registration initiated by one or more Third-Party Demand
Stockholders pursuant to one or more registration rights agreements in existence
as of the date hereof under which the rights of all of such Third-Party Demand
Stockholders are pari passu, if:
(i) the applicable registration rights agreement between the
Company and such Third-Party Demand Stockholders prohibits the inclusion in such
registration of securities other than those offered by such Third-Party Demand
Stockholders and the Company; and
(ii) no securities other than those offered by such
Third-Party Demand Stockholders are included in such registration.
3.2 Limitation on Inclusion of Registrable Securities; Priorities. If the
proposed method of distribution in connection with an Incidental Registration is
an underwritten public offering and the lead managing underwriter thereof
determines in good faith that the amount of securities to be included in such
offering would adversely affect such offering (including an adverse effect on
the price at which the securities proposed to be registered may be sold), the
amount of securities to be offered may be reduced or limited to the extent
necessary to reduce the total number of securities to be included in such
offering to the amount recommended by the lead managing underwriter as follows
(subject to any existing agreements as in effect on the date hereof):
(a) in connection with an offering initiated by the Company, if
securities are being offered for the account of other Persons (including any
Stockholders) such reduction shall be made:
(i) first, from the securities intended to be offered by such
other Persons (including any Stockholders), on a pro rata basis, based on the
number of Registrable Securities and other securities that are requested to be
included in such offering; and
(ii) last, from the number of securities to be offered for the
account of the Company;
(b) in connection with an offering initiated by a Third-Party Demand
Stockholder, such reduction shall be made:
(i) first, from securities held by Persons who are not
Stockholders, Third-Party Demand Stockholders, or other stockholders entitled
under any agreements between them and the Company to participate pari passu with
the Selling
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Stockholders in such Incidental Registration, and from securities being offered
for the account of the Company, allocated between the Company and such other
Persons as the Company may determine, subject to any agreements between the
Company and such other Persons;
(ii) second, from the number of Registrable Securities
requested to be included in such offering by the Selling Stockholders and any
other stockholders entitled under any agreements between them and the Company to
participate pari passu with the Selling Stockholders in such Incidental
Registration, on a pro rata basis, based on the number of Registrable Securities
and other securities which are requested to be included in the registration; and
(iii) last, from securities being offered by the Third-Party
Demand Stockholders.
3.3 Delay or Withdrawal of Registration. The Company may, without
the consent of any Stockholder, delay, suspend, abandon, or withdraw any
proposed registration in which any Stockholder has requested inclusion of such
Stockholder's Registrable Securities pursuant to this Section 3.
3.4 Withdrawal by Selling Stockholder. Each Selling Stockholder may,
no less than five (5) Business Days before the anticipated effective date of the
applicable Registration Statement for an Incidental Registration, withdraw some
or all of its Registrable Securities from inclusion in the Registration
Statement.
3.5 Underwriters; Underwriting Agreement. In connection with any
Incidental Registration involving an underwritten public offering of securities
for the account of the Company or a Third-Party Demand Stockholder, (a) the
managing and lead underwriters shall be selected by the Company, unless
otherwise provided in any agreement between the Company and any Third-Party
Demand Stockholder, and (b) each Selling Stockholder electing to participate in
the Incidental Registration shall, as a condition to the Company's obligation
under this Section 3 to include such Selling Stockholder's Registrable
Securities in such Incidental Registration, enter into and perform its
obligations under an underwriting agreement or other similar arrangement in
customary form with the managing underwriter of such offering.
4. Obligations with Respect to Registration.
4.1 Obligations of the Company. Whenever the Company is obligated by
the provisions of this Agreement to effect the registration of any Registrable
Securities under the Securities Act, the Company shall:
(a) Subject to the provisions of Section 4.2, use its
reasonable best efforts to cause the applicable Registration Statement to become
effective as promptly as practicable, and to prepare and file with the SEC any
amendments and supplements to the Registration Statement and to the Prospectus
used in connection therewith as may be necessary to keep the Registration
Statement and the Prospectus effective, current, and in compliance with the
provisions of the Securities Act, during the periods when the Company is
required by this Agreement to keep the Registration Statement effective and
current.
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(b) Within a reasonable time not to exceed ten (10) Business
Days prior to filing a Registration Statement or Prospectus or any amendment or
supplement thereto (other than any amendment or supplement in the form of a
filing that the Company makes pursuant to the Exchange Act), furnish to each
Selling Stockholder and each underwriter, if any, of the Registrable Securities
covered by such Registration Statement copies of such Registration Statement or
Prospectus as proposed to be filed, which documents will be subject to the
reasonable review and comments of the Selling Stockholders (and their respective
counsel) during such period, and the Company will not file any Registration
Statement or any Prospectus or any amendment or supplement thereto containing
any statements with respect to any Selling Stockholder or the distribution of
the Registrable Securities to be included in such Registration Statement for
sale by such Selling Stockholder if such Selling Stockholder reasonably objects
in writing. Thereafter, the Company will furnish to each Selling Stockholder and
each underwriter, if any, such number of copies of such Registration Statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), the Prospectus included in such Registration Statement (including each
preliminary Prospectus), and such other documents as such Selling Stockholder or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Selling Stockholder.
(c) After the filing of the Registration Statement, promptly
notify each Selling Stockholder of the effectiveness thereof and of any stop
order issued or threatened by the SEC and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered and promptly
notify each Selling Stockholder of the lifting or withdrawal of any such order.
(d) Immediately notify each Selling Stockholder holding
Registrable Securities covered by the applicable Registration Statement at any
time when a Prospectus relating thereto is required to be delivered under the
Securities Act, of (i) the determination that a Material Event exists or (ii)
the occurrence of an event requiring the preparation of a supplement or
amendment to such Prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading and promptly make
available to such Selling Stockholder any such supplement or amendment, and
subject to the provisions of this Agreement regarding the existence of a
Material Event, the Company will promptly prepare and furnish to each such
Selling Stockholder a supplement to or an amendment of such Prospectus so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(e) Enter into customary agreements (including an underwriting
agreement in customary form including customary indemnification provisions) and
perform its obligations under any such agreements and shall take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities.
(f) Make available for inspection by any Selling Stockholder
covered by such Registration Statement, any underwriter selected by a Selling
Stockholder pursuant to
- 12 -
Section 2.3 participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant, or other professional retained by any
such Selling Stockholder or underwriter, all financial and other records,
pertinent corporate documents, and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection therewith, and cause the Company's officers,
directors, and employees to supply all information reasonably requested by any
of such Persons in connection with such Registration Statement. Information that
the Company determines, in good faith, to be confidential and notifies such
Persons is confidential shall not be disclosed by such Persons unless (i) the
release of such information is ordered pursuant to a subpoena or other order
from a court, or other governmental agency or tribunal, of competent
jurisdiction or (ii) such information becomes public other than through a breach
by such Persons of the confidentiality obligations of such Persons. Each Selling
Stockholder agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any transactions in the securities of the Company or for any other
purpose unless and until such information is made generally available to the
public.
(g) Furnish, in the case of an underwritten public offering,
to each Selling Stockholder and to each underwriter a signed counterpart of (i)
an opinion or opinions of in-house counsel or outside counsel to the Company
addressed to such Selling Stockholder and underwriters (on which opinion both
such Selling Stockholder and each such underwriter shall be entitled to rely)
and (ii) a comfort letter or comfort letters from the Company's independent
public accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
holders of a majority of the Registrable Securities included in such
Registration Statement or the managing underwriter therefor reasonably requests.
(h) Register or qualify the Registrable Securities covered by
a Registration Statement under the securities or blue sky laws of such United
States jurisdictions as the Selling Stockholders shall reasonably request, and
do any and all other acts and things which may be necessary to enable each
Selling Stockholder to consummate the disposition in such jurisdictions of such
Registrable Securities in accordance with the method of distribution described
in such Registration Statement; provided, however, that the Company shall not be
required (i) to qualify to do business as a foreign corporation in any
jurisdiction where it is not otherwise required to be so qualified, (ii) to
conform its capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction, (iii) to execute or file any
general consent to service of process under the laws of any jurisdiction, or
(iv) to subject itself to taxation in any jurisdiction where it has not
theretofore done so.
(i) Use its reasonable best efforts to cause such Registrable
Securities covered by a Registration Statement to be listed on the principal
exchange or exchanges or qualified for trading on the principal over-the-counter
market or listed on the automated quotation market on which securities of the
same class and series as the Registrable Securities (or into which such
Registrable Securities will be or have been converted) are then listed, traded,
or quoted upon the sale of such Registrable Securities pursuant to such
Registration Statement.
(j) Make and keep information publicly available relating to
the Company so as to satisfy the requirements of Rule 144 under the Securities
Act (or any successor
- 13 -
or corresponding rule) and file with the SEC all reports and other documents
required of the Company under the Securities Act and the Exchange Act in a
timely manner.
(k) Make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act (provided that the
Company shall not be deemed in violation of this paragraph so long as it files
customary quarterly reports with the SEC for such period), and not file any
amendment or supplement to such Registration Statement or Prospectus to which
any of the Selling Stockholders shall have reasonably objected on the grounds
that such amendment or supplement does not comply in all material respects with
the requirements of the Securities Act.
4.2 Selling Stockholders' Obligations. The Company's obligations
under this Agreement to a Selling Stockholder shall be conditioned upon such
Selling Stockholder's compliance with the following:
(a) Such Selling Stockholder shall cooperate with the Company
in connection with the preparation of the Registration Statement, and for so
long as the Company is obligated to keep the Registration Statement effective,
such Selling Stockholder will provide to the Company, in writing, for use in the
Registration Statement, all information regarding such Selling Stockholder, its
intended method of disposition of the applicable Registrable Securities, and
such other information as the Company may reasonably request to prepare the
Registration Statement and Prospectus covering the Registrable Securities and to
maintain the currency and effectiveness thereof.
(b) Such Selling Stockholder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4.1(d), such Selling Stockholder will discontinue its offering and sale
of Registrable Securities pursuant to the applicable Registration Statement
until such Selling Stockholder's receipt of either (i) notice from the Company
that a Material Event no longer exists (but for no longer than the end of the
120-day period described in Section 2.6) or (ii) the copies of the supplemented
or amended Prospectus contemplated by Section 4.1(d), and, in either case, if so
directed by the Company, such Stockholder will deliver to the Company all copies
in its possession of the most recent Prospectus covering such Registrable
Securities at the time of receipt of such notice.
4.3 Underwriting Agreement. Neither the Company nor any other Person
may participate in any underwritten public offering in connection with a Demand
Registration or an Incidental Registration unless such Person (i) agrees to sell
its securities on the basis provided in any underwriting arrangements approved
by the Person or Persons selecting the lead managing underwriters for such
offering and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements and this Agreement.
4.4 Holdback by the Company. The Company agrees not to engage in any
public sale or distribution by it of any securities of the same class or series
as the Registrable Securities or securities convertible into, or exchangeable or
exercisable for, or the value of which relates to or is based upon, such
securities during the ten days prior to, and during the 45-day
- 14 -
period beginning on, the effective date of any Registration Statement filed with
respect to any public offering of Registrable Securities to the extent the lead
book running managing underwriter for such offering advises the Company in
writing that a public sale or distribution during such 45-day period (including
a sale pursuant to Rule 144 under the Securities Act) of Registrable Securities
by the Company other than pursuant to the underwritten public offering
contemplated by such registration statement would materially adversely impact
such underwritten public offering), except as part of such registration;
provided, however, that the limitation set forth in this Section 4.4 shall not
apply: (a) to registrations by the Company on Form S-4 or any other registration
of shares issued in a merger, consolidation, acquisition, or similar transaction
or on Form S-8, or any successor or comparable forms, or a registration
statement filed in connection with an exchange offer of securities of the
Company made solely to the Company's existing stockholders or otherwise pursuant
to a dividend reinvestment plan, stock purchase plan, or other employee benefit
plan; (b) to sales by the Company upon exercise or exchange, by the holder
thereof, of options, warrants or convertible securities; (c) to any employee
benefit plan (if necessary to allow such plan to fulfill its funding obligations
in the ordinary course); or (d) to any Demand Registration effected as a shelf
registration under Rule 415 of the Securities Act. This Section 4.4 shall not
limit any public sale or distribution of any securities of the Company by any
Third-Party Demand Stockholder or any Person having the right to require that
the Company include its securities in any registration initiated by any
Third-Party Demand Stockholder.
4.5 Holdback by Stockholders. To the extent not inconsistent with
applicable law, each Stockholder whose securities are included in a Registration
Statement in connection with an underwritten public offering agrees not to
effect any sale or distribution of the issue being registered or a similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 under the
Securities Act, during the ten days prior to, and during the 45-day period
beginning on, the effective date of such Registration Statement (except as part
of such registration), if and to the extent requested in writing by the managing
underwriter or Underwriters of such underwritten public offering.
5. Expenses of Registration.
5.1 Registration Expenses. Except as provided in Section 5.2, all
Registration Expenses incurred in connection with any Demand Registration or
Incidental Registration and the distribution of any Registrable Securities in
connection therewith shall be borne by the Company. For purposes of this
Agreement, the term "Registration Expenses" means all:
(a) registration, application, filing, listing, transfer, and
registrar fees,
(b) NASD fees and fees and expenses of registration or
qualification of Registrable Securities under state securities or blue sky laws,
(c) printing expenses (or comparable duplication expenses),
delivery charges, and escrow fees,
(d) fees and disbursements of counsel for the Company,
- 15 -
(e) fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters),
(f) fees and expenses of any special experts retained by the
Company in connection with such registration;
(g) reasonable fees and disbursements of underwriters and
broker-dealers customarily paid by issuers or sellers of securities,
(h) fees and expenses of listing the Registrable Securities on
a securities exchange or over-the-counter market; and
(i) all reasonable fees and disbursements of one (1) counsel
for the Selling Stockholders attributable to the distribution of the Registrable
Securities of such Selling Stockholders included in such registration.
5.2 Selling Stockholder Expenses. Each Selling Stockholder shall pay
all:
(a) stock transfer fees or expenses (including the cost of all
transfer tax stamps), if any; and
(b) all underwriting or brokerage discounts and commissions.
6. Indemnification.
6.1 By the Company. The Company agrees to indemnify and hold
harmless each Stockholder Indemnified Party from and against any Losses, joint
or several, to which such Stockholder Indemnified Party may become subject under
the Securities Act, the Exchange Act, state securities or blue sky laws, common
law or otherwise, insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the applicable Registration Statement or Prospectus,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company will
reimburse each such Stockholder Indemnified Party for any reasonable fees and
expenses of outside legal counsel for such Stockholder Indemnified Parties, or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such claims; provided, however, that the Company
will not indemnify or hold harmless any Stockholder Indemnified Party from or
against any such Losses (including any related expenses) to the extent such
Losses (including any related expenses) result from an untrue statement,
omission or allegation thereof which were (a) made in reliance upon and in
conformity with written information provided by or on behalf of the applicable
Selling Stockholder specifically and expressly for use or inclusion in the
applicable Registration Statement or Prospectus or (b) made in any Prospectus
used after such time as the Company advised such Selling Stockholder that the
filing of a post-effective amendment or supplement thereto was required, except
that this proviso shall not apply if the untrue statement, omission, or
allegation thereof is contained in the Prospectus as so amended or supplemented.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on
- 16 -
behalf of the Stockholder Indemnified Parties and shall survive the transfer of
such securities by the Selling Stockholders.
6.2 By Selling Stockholders. Each Selling Stockholder, individually
and not jointly, agrees to indemnify and hold harmless each Company Indemnified
Party and each other Stockholder Indemnified Party from and against any Losses,
joint or several, to which such Company Indemnified Party or any other
Stockholder Indemnified Party may become subject, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the applicable
Registration Statement or the Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, if the statement or omission was made in reliance upon and
in conformity with written information provided by or on behalf of such Selling
Stockholder or any Person who controls such Selling Stockholder specifically and
expressly for use or inclusion in the applicable Registration Statement or
Prospectus; provided, however, that such Selling Stockholder will not indemnify
or hold harmless any Company Indemnified Party or other Stockholder Indemnified
Party from or against any such Losses (including any related expenses) (a) to
the extent the untrue statement, omission, or allegation thereof upon which such
Losses (including any related expenses) are based was made in any Prospectus
used after such time as such Selling Stockholder advised the Company that the
filing of a post-effective amendment or supplement thereto was required, except
that this proviso shall not apply if the untrue statement, omission, or
allegation thereof is contained in the Prospectus as so amended or supplemented,
or (b) in an amount that exceeds the net proceeds received by such Selling
Stockholder from the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation by or on behalf of Company Indemnified Parties
or the Stockholder Indemnified Parties, and shall survive the transfer of such
securities by the Selling Stockholder.
6.3 Procedures. Each Indemnified Party shall give notice to each
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and the Indemnifying Party may
participate at its own expense in the defense, or if it so elects, assume the
defense of any such claim and any action or proceeding resulting therefrom,
including the employment of counsel and the payment of all expenses. The failure
of any Indemnified Party to give notice as provided in this Section 6.3 shall
not relieve the Indemnifying Party from its obligations to indemnify such
Indemnified Party, except to the extent the Indemnified Party's failure to so
notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action, or proceeding. If the Indemnifying Party elects to assume
the defense in any action or proceeding, an Indemnified Party shall have the
right to employ separate counsel in such action or proceeding and to participate
in the defense thereof, but such Indemnified Party shall pay the fees and
expenses of such separate counsel unless (a) the Indemnifying Party has agreed
to pay such fees and expenses or (b) the named parties to any such action or
proceeding (including any impleaded parties) include such Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there is or would be a conflict of interest between such
Indemnified Party and the Indemnifying Party in the conduct of the defense of
such action (in which case, if such Indemnified Party notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall
- 17 -
not assume the defense of such action or proceeding on such Indemnified Party's
behalf). No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the Indemnified Party (which consent will not
be unreasonably withheld), consent to entry of any judgment, or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
6.4 Contribution. If the indemnification provided for under this
Section 6 is unavailable to or insufficient to hold the Indemnified Party
harmless under Section 6.1 or Section 6.2 above in respect of any Losses
referred to therein for any reason other than as specified therein, then the
Indemnifying Party shall 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, in connection with the
statements or omissions that resulted in such Losses. The relative fault of each
Indemnifying Party or Indemnified Party, as the case may be, 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 (or that was failed to be
supplied by) such Indemnifying Party or Indemnified Party, such party's relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission. If contribution based upon the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, is not available, then the Indemnifying Party shall contribute to the
amount paid or payable by Indemnified Party as a result of Losses in such
proportion as is appropriate to reflect the relative benefits received by the
Indemnifying Party, on the one hand, and such Indemnified Party, on the other,
from the subject offering or distribution. The relative benefits received by the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other,
shall be deemed to be in the same proportion as the net proceeds of the offering
or other distribution received by the Indemnifying Party bears to the net
proceeds of the offering or other distribution received by the Indemnified
Party. 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. Limitation on Other Registration Rights. The Company shall not grant to
any Person any demand registration right, incidental registration right, or
other right that would conflict with any of the rights granted to Stockholders
herein.
8. Miscellaneous.
8.1 Notices.
(a) All notices, requests, demands, waivers, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally, mailed, certified or registered
mail with postage prepaid, or sent by reliable overnight courier, or facsimile
transmission, to the address or facsimile number specified for the applicable
party on Schedule A attached to this Agreement, or to such other Person,
address, or facsimile number as any party shall specify by notice in writing to
the other Parties.
- 18 -
(b) Any notice or other communication to a party in accordance
with the provisions of this Agreement shall be deemed to have been given (i)
three (3) Business Days after it is sent by certified or registered mail,
postage prepaid, return receipt requested, (ii) upon receipt when delivered by
hand or transmitted by facsimile (confirmation received), or (iii) one (1)
Business Day after it is sent by a reliable overnight courier service, with
acknowledgment of receipt requested. Notwithstanding the preceding sentence,
notice of change of address shall be effective only upon actual receipt thereof.
8.2 Amendment. Any provision of this Agreement may be amended or
modified in whole or in part at any time by an agreement in writing among the
Company and the Stockholder holding a majority of the Registrable Securities,
executed in the same manner as this Agreement. No consent, waiver, or similar
act shall be effective unless in writing.
8.3 Entire Agreement. This Agreement constitutes the entire
agreement among the Parties and supersedes all prior agreements and
understandings, oral and written, among the Parties with respect to the subject
matter hereof.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
8.5 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of California,
without giving effect to principles of conflicts of laws.
8.6 Assignment.
(a) Except as expressly provided in this Section 8.6, the
rights of the Parties cannot be transferred or assigned and any purported
assignment or transfer to the contrary shall be void ab initio. So long as the
terms of this Section 8.6 are followed, any Stockholder may transfer any of its
rights under this Agreement, without the consent of the Company, to any Person
to whom such holder transfers any Registrable Securities or any rights to
acquire Registrable Securities, whether such transfer is by sale, gift,
assignment, pledge, or otherwise, so long as:
(i) such transfer is not made pursuant to an effective
Registration Statement or pursuant to Rule 144 or Rule 145 (or any successor
provisions) under the Securities Act or in any other manner the effect of which
is to cause the transferred securities to be freely transferable without regard
to the volume and manner of sale limitations set forth in Rule 144 (or any
successor provision) in the hands of the transferee as of the date of such
transfer; and
(ii) such transfer is made (A) to another Stockholder;
(B) to any Person that, directly or indirectly, through the ownership of voting
securities, controls, is controlled by, or is commonly controlled with such
Stockholder; (C) to any investment fund formed by an affiliate of such
Stockholder that is commonly controlled with such Stockholder; (D) to a trust
for the benefit of the equity owners of such Stockholder and of which the
trustee or trustees are one or more Persons that either control, or are commonly
controlled with, such
- 19 -
Stockholder or are banks, trust companies, or similar entities; (E) any Person
for which such Stockholder is acting as nominee or any trust controlled by or
under common control with such Person; (F) any Person, so long as such Person
acquires, pursuant to such transfer or series of related transfers, not less
than fifty thousand (50,000) Registrable Securities (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like), or (G) where
the transferring Stockholder is an individual, (i) to the estate, heirs, or
legatees of such Stockholder upon such Stockholder's death; (ii) to or for the
benefit of any member of such Stockholder's family or to any Person controlled
by such Stockholder or one or more members of such Stockholder's family; or
(iii) to any charitable foundation, charitable trust, or similar entity.
(b) In addition to the transfers permitted by Section 8.6(a),
so long as the other terms of this Section 8.6 are followed, any Stockholder may
transfer any of its rights under this Agreement (other than its rights under
Section 2), without the consent of the Company, to any charitable organization
to which Registrable Securities are transferred by any charitable foundation,
charitable trust, or similar entity to which Registrable Securities were
previously transferred in accordance with Section 8.6(a); provided that any
notice under this Agreement that the Company would otherwise be required to
deliver to such charitable organization, as transferee of any of the
transferor's rights under this Agreement, may be given to the transferor of such
Registrable Securities at the address or facsimile number specified by the
transferor in accordance with Section 8.1(a).
(c) Notwithstanding Section 8.6(a) or Section 8.6(b), no
Stockholder may assign any of its rights under this Agreement to any Person to
whom such Stockholder transfers any Registrable Securities unless the transfer
of such Registrable Securities did not require registration under the Securities
Act.
(d) The nature and extent of any rights assigned shall be as
agreed to between the assigning party and the assignee. Any assignee hereunder
shall receive such assigned rights subject to all the terms and conditions of
this Agreement, including the provisions of this Section 8.6. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns.
8.7 Binding Agreement; No Third Party Beneficiaries. This Agreement
will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. This Agreement shall constitute a binding
agreement among the Company and each other Persons executing this Agreement at
such time as it has been executed by the Company and such other Persons, even if
additional Persons whose names appear on the signature page to this Agreement
have not executed and delivered this Agreement and may or may not do so at a
later time. Except as set forth herein and by operation of law, no party to this
Agreement may assign or delegate all or any portion of its rights, obligations,
or liabilities under this Agreement without the prior written consent of each
other party to this Agreement.
[Signature page follows.]
- 20 -
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth herein.
NOVATEL WIRELESS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------
Title: Chief Executive Officer
"PURCHASERS"
BAY INVESTMENTS LIMITED
By: /s/ X. X. Xxxxxxx
-----------------
Title: Director
MUTUAL TRUST MANAGEMENT (BERMUDA)
LIMITED AS TRUSTEE OF SOFAER FUNDS/
GLOBAL HEDGE FUND
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Authorised signatory of Sofaer Capital Inc.
Authorised Investment Adviser
RIT CAPITAL PARTNERS PLC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Authorised signatory of Sofaer Capital Inc.
Authorised Investment Adviser
SOEN XXXX XXX
By: /s/ Soen Xxxx Xxx
-----------------
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
XXXXX XXXXXXXX
By: /s/ Xxxxx Xxxxxxxx
------------------
CORNERSTONE EQUITY INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxx
------------------
Title: Managing Director
PS CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxx
-------------------
Title: Managing Director
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
PAN INVEST & TRADE INC.
By: Marcu Associated NA
-------------------
By: Xxxxx Xxxxxx/Xxxxxx Xxxxxxxxx
------------------------------
Title: Directors
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
SCHEDULE A
Addresses for Notice Purposes
IF TO THE COMPANY:
Novatel Wireless, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx,
Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: J. Xxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
IF TO THE PURCHASERS:
Mutual Trust Management (Bermuda) RIT Capital Partners plc.
Limited as Trustee of Sofaer Funds/Global Hedge Fund Xxxxxxx House
Xxxxxxxxxx Xxxxx 00 Xx. Xxxxx' Xxxxx
0 Xxxxxx Xxxxxx Xxxxxx
P.O. Box HM 951 SW1A 1NR
Attention: Xxxxxxx Xxxxxx Attention: Xxxxxxx Xxxxxx
Pan Invest & Trade Inc. Bay Investments Limited
Xxxxx Xxxxxx Xxxxx 0000, 00/X Xxxxxxx Xxxxx
Xxxx Town 00 Xxxxxxx Xxxx
Xxxxxxx XXX XxxXxxx
Attention: Xxxxx Xxxxxx Hong Kong
Attention: Xxxxx Xxxxxxx
Soen Xxxx Xxx Xxxxx Xxxxxxxx
#25 - 8, Sangdo 2 - Dong Novatel Wireless, Inc.
Dongjak - Xx 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxx 156-03 Xxx Xxxxx, XX 00000
Cornerstone Equity Investors, LLC PS Capital LLC
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx, Xxxxx 00x
Xxxxx 0000 Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000 Attention: Xxxx Xxxx
Attention: Xxxxxx X. Xxxx
With a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
