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EXHIBIT 4.11
MOBILITY ELECTRONICS, INC.
(A Delaware corporation)
FORM OF SERIES C PREFERRED STOCK PURCHASE AGREEMENT
MOBILITY ELECTRONICS, INC., a Delaware corporation (the "Company"),
whose address is 00000 Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, hereby agrees with the undersigned Purchaser as follows:
1. TRANSACTION
The Company, by due action of its Board of Directors, has authorized
the offer and sale to you under this Series C Preferred Stock Purchase Agreement
("Agreement" or "Purchase Agreement") and to other purchasers under similar or
different Series C Stock purchase agreements ("Other Purchasers") up to $15
million of shares of Series C Convertible Preferred Stock, par value $.01 per
share ("Series C Stock"), of the Company ("Preferred Shares"). The minimum
subscription amounts per investor shall be 4,000 Preferred Shares or $24,000 and
lesser amount per investor shall not be sold unless agreed to by the Company and
First London Securities Corporation, the Company's placement agent in this
offering (the "Placement Agent"). The Preferred Shares shall conform to the
description thereof in the Memorandum (as defined below).
2. PURCHASE AND SALE
2.1 Preferred Shares. Subject to all of the terms and conditions of
this Agreement, the Company will issue and sell to you (sometimes referred to as
"Holder") the number of Preferred Shares shown on the signature page hereof and
you will purchase the same from the Company; provided that Preferred Shares in
the aggregate amount of at least $1,000,000 have been subscribed and paid for by
you and the Other Purchasers and all other terms and conditions set forth in
this Purchase Agreement are satisfied. You acknowledge that Preferred Shares
subscribed and paid for by officers, directors or employees of the Company, or
by holders of the Company's outstanding securities, or by officers or employees
of the Placement Agent for their own account, or by an affiliate of any of the
foregoing, shall be counted in determining whether at least $1,000,000 have been
subscribed and paid for. You also understand and agree that you must purchase a
minimum of 4,000 Preferred Shares or $24,000.
2.2 Funds Escrow Account. The funds tendered by you pursuant to this
Agreement will be deposited in a special escrow account (the "Fund") at First
Arizona Savings and Loan Association ("Funds Escrow Agent"), whose address is
Attention: Xxx Xxxx, 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, and will be returned to you without interest or deduction for escrow fees
and expenses, if: (a) your subscription for the purchase of Preferred Shares
pursuant to this Agreement has not been accepted by the Company or (b) if
purchase agreements for the purchase of at least $1,000,000 of Preferred Shares
and related funds in the amount of at least $1,000,000 are
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not deposited in the Fund before the close of business on March 31,1999, which
date may be earlier terminated or extended one or more times by the Company in
its sole discretion, without notice to you and the Other Purchasers (the
"Termination Date"). It is understood and agreed that if this Agreement is
accepted by the Company, and a minimum of $1,000,000 of funds are received and
accepted by the Company before the close of business on the Termination Date,
then at the Closing (as defined below) with respect to the Preferred Shares
subscribed for you, the funds tendered herewith (less any fees paid to the
Placement Agents), shall be delivered to the Company by the Funds Escrow Agent
in payment for the Preferred Shares subscribed for by you, or such lesser amount
as may be allocated to you by the Company. If you are allocated less than the
full amount of the Preferred Shares subscribed for by you and the full amount of
the Preferred Shares subscribed for has been timely paid in full by you, the
Company shall instruct the Funds Escrow Agent to remit the over payment of the
amount paid, without interest or deduction, to you within fifteen days after
such partial acceptance of this Purchase Agreement. The Preferred Shares are
being offered by the Company subject to the right of the Company and Placement
Agent to reject, at their discretion, any subscription, in whole or in part, For
any reason, and to accept subscriptions notwithstanding the order in which they
are received.
2.3 Closing. The purchase by and sale and delivery to you and Other
Purchasers of the Preferred Shares (the "Closing") shall take place at the
office of the Company or of the Funds Escrow Agent at such date and time, or at
such other place, upon which the Company and the Placement Agent may agree (such
date being hereinafter called the "Closing Date"). At the Closing, the Company
shall deliver to a representative of the Placement Agent on your behalf,
instruments evidencing the Preferred Shares comprising the Preferred Shares
being purchased by you and other items required to be delivered to it pursuant
to this Purchase Agreement. If at any time prior to the Termination Date,
subscriptions for at least $1,000,000 of Preferred Shares have been received and
accepted by the Company, and the full purchase price for such Preferred Shares
have been deposited into the Fund, the Company may have an initial closing
("Initial Closing") with respect to such accepted subscriptions and continue to
offer the remaining Preferred Shares until the Termination Date or $15 million
of Preferred Shares have been sold, whichever occurs earlier; provided, however,
that the final Closing shall take place not later than ten days after the
Termination Date.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
As an inducement to you to enter into this Agreement, the Company
represents, warrants and agrees that:
3.1 Disclosure. The Company has prepared the Company's Private
Placement Memorandum (the "Memorandum") dated January 25, 1999, together with
all exhibits annexed thereto, and in all such cases, any amendments or
supplements thereto (collectively, the "Disclosure Documents"). The Disclosure
Documents, when taken as a whole, do not contain, to the best knowledge of the
Company, any untrue statement of material fact or omit any material fact
necessary in order to make the statements therein not misleading; provided,
however, that the Memorandum contains projections and estimates of future
events, and such projections and estimates have been
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based upon certain assumptions that management of the Company made in good faith
and believed were reasonable at the time such materials were prepared.
3.2 Corporate Power. The Company has all required corporate power and
authority to own its own properties and to carry on its business as presently
conducted. The Company has all required power and authority to execute and
deliver this Agreement, to issue and sell the Preferred Shares, and to carry out
the transactions contemplated by this Agreement.
3.3 Authority for Agreement. This Agreement has been duly authorized by
all necessary action of the Company and, when executed and delivered by the
Company, will be a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally or by general
principles of equity, and except that the indemnification provisions of the
Agreement may be held to be violative of public policy under either federal or
state laws in the context of the offer or sale of securities.
3.4 Financial Statements. The Memorandum contains correct and complete
copies of the Company's consolidated balance sheets as of December 31, 1996 and
1997, the consolidated statements of operations for the years ended December 31,
1996 and 1997, consolidated statements of stockholders' equity for the years
ended December 31, 1996 and 1997 and the consolidated statements of cash flows
for the years ended December 31, 1996 and 1997 (the "Financial Statements"). The
Financial Statements are in accordance with the books and records of the Company
and have been prepared in accordance with generally accepted accounting
principals and present fairly in all material respects the financial position of
the Company on the dates of such statements and the results of its operations
for the periods covered. The Company maintains its books and records and
accounts in accordance with good business practice and in sufficient detail to
reflect accurately the transactions and dispositions of its assets, liabilities
and securities.
3.5 Description of Securities. The Preferred Shares when issued and
delivered will conform to the description thereof under the captions
"Description of Securities'` and "Terms of the Offering" in the Disclosure
Documents.
3.6 Validity of Stock. The Preferred Shares, when issued and paid for
at the Closing, will constitute duly authorized, legally issued shares of Series
C Stock. The shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"), issuable upon conversion of the Preferred Shares will,
when issued in accordance with the terms of the Series C Stock, be duly
authorized, legally issued shares of Common Stock.
3.7 No Conflicting Rights. The holders of the outstanding capital stock
of the Company are not entitled to pre-emptive or other rights to subscribe for
Preferred Shares. Other than as set forth in the Memorandum, the offering of the
Preferred Shares as contemplated by the Memorandum does not give rise to any
rights relating to the registration of any outstanding capital stock.
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3.8 Patents, Trade-marks, Service Marks and Copyrights.
(a) Ownership. The Company owns all patents, trade-marks, service marks
and copyrights, if any, necessary to conduct its business, or possesses adequate
licenses or other rights, if any, therefor (the "Proprietary Rights"), without
conflict with the rights of others.
(b) Conflicting Rights of Third Parties. The Company has the right to
use the Proprietary Rights without infringing or violating the rights of any
third parties. No claim has been asserted by any person as to the ownership of
or right to use any Proprietary Right or challenging or questioning the validity
or effectiveness of any license or agreement constituting a part of any
Proprietary Right, and the Company does not know of any valid basis for any such
claim. Each of the Proprietary Rights is valid, has not been canceled, abandoned
or otherwise terminated and, if applicable, has been duly issued or filed.
(c) Claims of Other Persons. The Company has no knowledge of any claim
that, or inquiry as to whether, any product, activity or operation of the
Company infringes upon or involves, or has resulted in the infringement of, any
proprietary right of any other person, corporation or other entity; and no
proceedings have been instituted, or are pending or threatened that challenge
the rights of the Company with respect thereto.
3.9 Trade Secrets and Customer Lists. The Company has the right to use,
free and clear of any claims or rights of others, all trade secrets, customer
lists and proprietary information required for the marketing of all merchandise
and services formerly or presently sold or marketed by the Company. The Company
is not using, or in any way making or use of any confidential information or
trade secrets of any third party.
3.10 Litigation. There is no litigation, arbitration or governmental
proceeding or investigation pending or, to the knowledge of the Company,
threatened (i) against the Company (except as described in the Memorandum), (ii)
affecting any of the properties or assets of the Company, or (iii) against any
officer, director, shareholder or employee of the Company in such capacity or
relating to his prior employment relationships that would have a material
adverse effect on the Company taken as a whole. The Company, is not aware of any
fact that is likely to form the basis of any such litigation, arbitration or
proceeding.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS BY YOU
You hereby represent, warrant and agree that:
4.1 Authority. You have full power and authority to enter into this
Agreement and it constitutes your legal, valid and binding obligation,
enforceable in accordance with its terms.
4.2 Purchase For Own Account. You are acquiring the Preferred Shares
for your own account, for investment purposes and not for resale or with a view
to any distribution, or in connection with any distribution thereof you are able
to (i) bear the economic risk of your investment
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in the Preferred Shares, (ii) hold the Preferred Shares for an indefinite period
of time, and (iii) afford a complete loss of your investment.
4.3 Investment Experience. You have the requisite knowledge and
experience in financial and business matters, including investments of this
type, to be capable of evaluating the merits and risks or an investment in the
Preferred Shares and of making an informed investment decision with respect
thereto.
4.4 Receipt Of Information. You have received, read carefully,
considered and fully understood the Disclosure Documents and you have received
from the Company all of the information concerning the Company which you
consider to be material in making your investment decision, which information
has been requested by you if not already furnished by the Company. You have had
full access to the books and records of the Company and to its officers,
directors and accountants for the purpose of obtaining and verifying such
information and you have had an opportunity to ask questions and receive answers
from the officers of the Company regarding the terms and conditions of this
transaction and the Company's business and financial condition.
Except as expressly set forth in the Disclosure Documents, no
representations or warranties, oral or otherwise, have been made to you,
including without limitation, any representations concerning the future
prospects of the Company, by the Company, any Placement Agent, any broker/dealer
or any agent employee or affiliate of the Company, any Placement Agent, any
broker/dealer or any other person whether or not associated with this offering,
and in entering into this action you are not relying upon any information other
than that contained in the Disclosure Documents, and the results of your own
independent investigation. You have obtained sufficient information to evaluate
the merits and risks of your investment and to make an informed investment
decision.
4.5 Restricted Securities. You understand and acknowledge that the
Preferred Shares you are purchasing hereunder are "restricted securities" under
United States federal and state securities laws insofar as they have not been
registered under the Securities Exchange Act of 1933, as amended (the "1933
Act"), or the securities laws of any other jurisdiction, that they may not be
resold or transferred without compliance with the registration or qualification
provisions of the 1933 Act or applicable federal and state securities laws of
any state or other jurisdiction or an opinion of counsel acceptable to the
Company that an exemption from such registration and qualification requirements
is available.
4.6 Limitations on Disposition. Without in any way limiting the
representations set forth above, you further agree not to make any disposition
of all or any portion of the Preferred Shares unless and until:
(a) There is then in effect a registration statement under the 1933 Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; or
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(b) (i) You shall have notified the Company of the proposed disposition
and shall have furnished the Company with a statement of the circumstances
surrounding, the proposed disposition and (ii) you have furnished the Company
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the 1933 Act
and applicable securities laws of any state or other jurisdiction.
4.7 Illiquid Investments. Your overall commitment to investments which
are not readily marketable is not disproportionate to your net worth and your
investment in the Preferred Shares will not cause such overall commitment to
become excessive. You have adequate means of providing for your current needs
and personal contingencies.
4.8 Accredited Investor. You are an "Accredited Investor" as that term
is defined in Section 501(a) of Regulation D promulgated under the Act
("Regulation D"). Specifically, you are (check and initial all appropriate
items):
___ (i) A bank as defined in Section 3(a)(2) of the Act, or a
savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934; in insurance
company as defined in Section 2(13) of the Act; an investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of
that Act; a small Business Investment Company licensed by the US.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in
excess of $5,000,000; an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings and
loan association, insurance company, or registered investment
advisor, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by, persons that are accredited investors.
___ (ii) A private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940.
___ (iii) An organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total assets in
excess of $5,000,000.
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___ (iv) A director or executive officer of the Company.
___ (v) A natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his or her
purchase exceeds $1,000,000.
___ (vi) A natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same
income level in the current year. If Subscriber is a California
resident, Subscriber's investment in the Company will not exceed
10% of such subscriber's net worth (or joint net worth with his
or her spouse). If Subscriber is a Massachusetts resident, such
subscriber's investment in the Company will not exceed 25% of
Subscriber's joint net worth with his or her spouse (exclusive of
principal residence and its furnishings).
___ (vii) trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) (i.e., a purchaser not an
Accredited Investor who either alone or with his purchaser
representative(s) has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits
and risks of the prospective investment).
___ (viii) An entity in which all of the equity owners are
accredited investors. (IF THIS ALTERNATIVE IS CHECKED, SUBSCRIBER
MUST IDENTIFY EACH EQUITY OWNER AND PROVIDE STATEMENTS SIGNED BY
EACH DEMONSTRATING HOW EACH QUALIFIED AS AN ACCREDITED INVESTOR.)
4.9 Company Reliance On Questionnaire. You understand, acknowledge and
agree that the Company, in entering into and performing under this Agreement, is
relying on the accuracy of the responses by you in this Agreement, which
responses you warrant to be true, complete and correct.
4.10 Disclosure. The Company has provided you with all of the material
information which you have reasonably requested in deciding whether to invest in
the Preferred Shares.
5. CONDITIONS TO YOUR OBLIGATIONS
Your obligations to purchase Preferred Shares under this Agreement are
subject to the fulfillment on or before the Closing, of each of the following
conditions:
5.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 3 above shall be true on and as of the
Closing with the same effect as though made on and as of the date thereof.
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5.2 Company Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement,
which performance or compliance are required of it on or before the Closing.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligations of the Company to sell and issue the Preferred Shares
to you are subject to the fulfillment on or before the Closing of each of the
following conditions by you:
6.1 Representations and Warranties. Your representations and warranties
contained in Section 4 above shall be true on and as of the Closing with the
same effect as though made on and as of the date thereof.
6.2 Payment. You shall have delivered into the Fund the amount of the
purchase price of the Preferred Shares being purchased by you.
6.3 Blue Sky Qualification. The Company shall have received any permits
or authorization from any state securities law authority which may be necessary
to qualify the offer and sale of the Preferred Shares to you.
7. REGISTRATION RIGHTS
The Company hereby grants to Holder the registration rights set forth
in Appendix I attached hereto, subject to the remainder of this Agreement.
Appendix I is incorporated into, and made a part of, this Agreement.
8. FURTHER AGREEMENTS
You agree that:
8.1 No Transfer or Assignment. You will not transfer or assign this
Agreement or any of your interest herein except as provided in Section 4.6
above.
8.2 Successors and Assigns. You may not cancel or revoke this Agreement
and this Agreement shalt be binding upon your successors and assigns, except as
provided by certain state laws.
8.3 Indemnification. You shall indemnify, hold harmless and defend the
Company and the Placement Agent and their respective affiliates and agents with
respect to any and all loss, damage, expense, claim, action or liability any of
them may incur as a result of the breach or untruth of any representations or
warranties made by you herein, and you agree that in the event of any breach or
untruth of any representations or warrants made by you herein, the Company may,
at its
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option, forthwith rescind the sale of the Preferred Shares to other rights or
remedies which the Company may have.
8.4 Legend. A legend in substantially the following form will be placed
on all documents or certificates evidencing the Preferred Shares and the
underlying shares of Common Stock:
"THE SECURITIES EVIDENCED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAW OF ANY STATE OR OTHER JURISDICTION AND SUCH SECURITIES MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
9. GENERAL AND MISCELLANEOUS
9.1 Survival. The warranties, representations and covenants of the
parties contained in this Agreement shall survive the execution and delivery of
this Agreement and the Closing.
9.2 Entire Agreement. This Agreement constitutes the entire agreement
among the parties, and no party in any manner shall be liable or bound to any
other party in any manner by any warranties, representations, guarantees or
covenants except as specifically set forth in this Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
9.3 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware without regard to conflicts of
law.
9.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.5 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the tenth day after the date of mailing if mailed to the
party to whom notice is to be given, by first class mail registered or
certified, postage prepaid, and properly addressed as follows: if to the
purchaser, at his address as shown in the Company record; and if to the Company,
at its principal office. Any party may change its
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address for purposes of this paragraph by giving the other party, written notice
of the new address in the manner set forth above.
9.6 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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PURCHASE AGREEMENT GENERAL INSTRUCTIONS
GENERAL INSTRUCTIONS
This Purchase Agreement contains all documents necessary to subscribe
for Shares of Series C Convertible Preferred Stock, par value $.01 per Share
("Preferred Shares"), of Mobility Electronics, Inc., a Delaware corporation (the
"Company").
You may subscribe for Preferred Shares by completing the Purchase
Agreement in the following manner:
1. On line (a) of the signature page state the number of Preferred Shares
you wish to purchase.
2. On line (b) of the signature page state the total cost of the Preferred
Shares you wish to purchase. To obtain the cost, multiply the number of
Preferred Shares you desire to purchase by the purchase price per Share
set forth.
3. Please complete the detailed investment and other representations in
the Purchase Agreement to evidence your suitability for an investment
in the Company. All purchasers must complete and sign the Purchase
Agreement.
4. Sign and state your address, telephone number and social security or
other taxpayer identification number on the lines provided on the
signature page to the Purchase Agreement, have your signature
acknowledged by a notary public and deliver the completed Purchase
Agreement to the Placement Agent with payment of the entire purchase
price of the Preferred Shares subscribed for in the following manner.
A wire transfer or check payable to the order of First Arizona Savings
and Loan Association, as escrow agent, Wire transfer instructions are
as follows:
Correspondent Bank: Norwest Bank, Minnesota N/A
Routing/ABA: 000000000
Beneficiary Bank: Acct #6888601016
First Arizona Savings
Further Credit: Mobility Escrow Account
Account #: 005-0000000
FBO (Your Name)
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Checks should be sent overnight to:
Attention: Xxx Xxxx
First Arizona Savings
0000 X. Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000
Following receipt of your completed subscription documents and
check, the Company will accept or reject our subscription, in its sole
discretion. If your subscription is accepted. a confirmation will be sent to you
prior to closing. If; for any reason, your subscription is rejected, your funds
will be returned to you promptly, without any interest paid thereon. The Company
may reject a subscription for any reason in its sole discretion.
5. Send all documents and payments to:
First London Securities Corporation
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000 the
Attention: Xxxxx X. Xxxxxxxx, XX
Managing Director (000) 000-0000
THE COMPLETED SUBSCRIPTION AGREEMENT SHOULD BE RETURNED IN ITS
ENTIRETY TO THE PLACEMENT AGENT DESIGNATED ABOVE.
ACCEPTANCE OF DELIVERY
All questions as to the validity form, eligibility (including
time of receipt) and acceptance of the completed Purchase Agreement will be
determined by the Company, which determination will be Final and binding. The
Company reserves the absolute right to reject any completed Purchase Agreement,
in its sole and absolute discretion. The Company also reserves the right to
waive any irregularities in, or conditions of, the submission of completed
Purchase Agreements, and the Company's interpretation of the terms and
conditions for the purchase of Preferred Shares (including these instructions)
shall be final and binding. The Company shall be under no duty to give any
notification of irregularities in connection with any attempted subscription for
Preferred Shares or incur any liability for failure to give such notification.
Until such irregularities have been cured or waived, no subscription for
Preferred Shares shall be deemed to have been made. Any Purchase Agreement that
is not properly completed and as to which defects have not been cured or waived
will be returned by the Company to the subscriber as soon as practicable.
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SUBSCRIPTION AGREEMENT SIGNATURE PAGE
PLEASE PRINT OR TYPE. USE INK ONLY.
(ALL PARTIES MUST SIGN)
The undersigned investor hereby certifies that he or she (i)
has received and relied solely upon the Offering Documents, (ii) agrees to all
the terms and conditions of this Purchase Agreement, (iii) meets the suitability
standards set forth in this Purchase Agreement and (iv) is a resident of the
state or foreign jurisdiction indicated below.
(a) The undersigned irrevocably subscribes for _________ shares of
Preferred Stock.
(b) The total cost of the shares subscribed for, at $6.00 per share, is
$____________.
---------------------------------------
Name of Subscriber (Print) If other than Individual check one and
indicate capacity of signatory under
the signature:
--------------------------------------- [ ] Trust
Name of Joint Subscriber (if any) (Print) [ ] Estate
[ ] Uniform Gifts to Minors Act of
State of
X [ ] Attorney-in-fact
--------------------------------------- [ ] Corporation
Signature of Subscriber [ ] Other
X
---------------------------------------
Signature of Joint Subscriber (if any) If Joint Ownership, check one:
[ ] Joint Tenants with Right of
--------------------------------------- Survivorship
Capacity of Signatory (if applicable) [ ] Tenants in Common
[ ] Tenants by the Entirety
[ ] Community Property
---------------------------------------
Social Security or Taxpayer
Identification Number
Backup Withholding Statement:
Please check this box only if the
--------------------------------------- investor is subject to
Residence Address [ ] backup withholding.
--------------------------------------- Foreign Person:
City State Zip Code [ ] nonresident alien, foreign
corporation, foreign partnership,
foreign trust or foreign estate
Telephone ( )
----------------------
The investor agrees to the terms of this Purchase Agreement and, as required by
the Regulations pursuant to tile Internal Revenue Code, certifies under penalty
of perjury that (1) the Social Security Number or Taxpayer Identification Number
and address provided above is correct, (2) the investor is not subject to backup
withholding (unless the Backup Withholding Statement box is checked) either
because lie has not been notified that he is subject to backup withholdings as a
result of a failure to report all interest or dividends or because the Internal
Revenue Service has notified him that he is no longer subject to backup
withholding and (3) the investor (unless the Foreign Person box above is
checked) is not a nonresident alien, foreign partnership, foreign trust or
foreign estate.
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THE SUBSCRIPTION FOR _____________ SHARES OF SERIES C CONVERTIBLE
PREFERRED STOCK OF MOBILITY ELECTRONICS, INC. BY THE ABOVE NAMED SUBSCRIBER(S)
IS ACCEPTED THIS ___ DAY OF ___________________, 1999.
MOBILITY ELECTRONICS, INC
By:
---------------------------
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Appendix I
Registration Rights
1. Registration Rights
All defined terms used herein shall have the meanings ascribed thereto
in the Agreement. In addition, the Company covenants and agrees with you as
follows:
1.1 Definitions. For purposes of this Appendix I:
(a) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.10 hereof.
(b) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(c) The term "Public Company" means a corporation which has a
class of equity securities registered pursuant to Section 12 of the
1934 Act, or which is required to file periodic reports pursuant to
Section 15(d) of the 1934 Act.
(d) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the 1933 Act, and the
declaration or ordering of effectiveness of such registration statement
or document.
(e) The term "Registrable Securities" means (i) the shares of
common stock, par value $0.01 per share, of the Company (the "Common
Stock") issuable upon the conversion of the Series C Stock and (ii) any
Common Stock issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) above, excluding in all
cases, however, any Registrable Securities (I) sold by a person in a
transaction in which his rights under this Section 1 are not assigned
(II) registered under the 1933 Act, the registration statement in
connection therewith has been declared effective, and such shares have
been disposed by such holder pursuant to such registration statement.
(f) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common
Stock issuable upon conversion of shares of Series C Stock outstanding
which are Registrable Securities.
(g) The term "SEC" shall mean the Securities and Exchange
Commission.
(h) All other capitalized terms used herein which are not
defined herein shall have the meaning, given elsewhere in this
Agreement.
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1.2 Demand Registration.
(a) From and after January 1, 2001, the Holders of at least
66 2/3% of the then outstanding Registrable Securities may notify the
Company in writing that such Holders desire for the Company, to cause
all or a portion of such notifying Holders' Registrable Securities to
be registered for sale to the public under the Securities Act. Upon
receipt of such written request, the Company will promptly notify in
writing all other Holders of Registrable Securities of such request,
which Holders shall within twenty days following such notice from the
Company, notify the Company in writing whether such persons desire to
have Registrable Securities held by them included in such offering. The
Company will, promptly following the expiration of such twenty day
period, prepare and file subject to the provisions of this Section 1,
and use its best efforts to prosecute to effectiveness, in appropriate
filing, with the SEC of a registration statement covering such
Registrable Securities and the proposed sale or distribution thereof
under the Securities Act.
(b) Notwithstanding anything in this Section 1.2 to the
contrary, the Company shall not be obligated to prepare or File any
registration statement pursuant to this Section 1.2 or to prepare or
file any amendment or supplement thereto, at any time when the Company,
in the good faith judgement of its Board of Directors, reasonably
believes that the filing thereof at the time requested, or the offering
of securities Pursuant thereto, (i) would materially, adversely affect
a pending or proposed public offering of the Company's securities, or
an acquisition, merger, recapitalization, consolidation, reorganization
or similar transaction, negotiations, discussions or pending proposals
with respect thereto or (ii) would materially adversely affect the
business or prospects of the Company in view of the disclosures that
may be required thereby, of information about the business, assets,
liabilities or operations of the Company not theretofore disclosed;
provided, however, that the filing of a registration statement, or any
supplement or amendment thereto, by the Company may be deferred
pursuant to this Section 1.2 for no longer than 180 days (but only once
in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the
contrary: (i) the Company shall not be required to effect the
registration of the Registrable Securities pursuant to this Section 1.2
more than one time in any twelve month period and no more than three
times in the aggregate; and (ii) the Company shall not be required to
effect any such registration unless at least $10 million of Registrable
Securities are to be sold in such registration (with such amount being
determined based on the market price of the Common Stock on the date of
the initiating Holder(s) request). If any registration pursuant to this
Section 1.2 is in the form of an underwritten offering, the Company
will select and obtain the investment banker or investment bankers and
manager or managers that will administer the offering, which investment
bankers must offer terms which are reasonably competitive in the
marketplace for similar size companies and similar offerings. The
Company shall (together with all Holders proposing to distribute
Registrable Securities through such underwriting) enter into an
underwriting agreement, containing usual and customary terms, with the
managing
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underwriter selected for such underwriting. If any holder of
Registrable Securities disapproves of the terms of the underwriting
such person may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. The Registrable Securities so
withdrawn shall also be withdrawn from registration.
(d) If any registration statement under this Section 1.2 is
not declared effective (except for the reasons specified in Section 1.9
below and except as a result of Holders withdrawing Registrable
Securities), then the holders of Registrable Securities may request an
additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall
relieve the Company of its obligations to effect any registrations
under, and pursuant to the terms of. Sections 1.3 and 1.4 hereof.
1.3 S-3 Registrations.
(a) Once the Company is eligible to effect a registration of
its securities under Form S-3 (or successor form), the Holders will
have the right to request and have effected (but only one registration
per twelve month period) registrations of Registrable Securities on
Form S-3 as long as the aggregate proposed offering price is not less
$3 million for any such registration. Upon written request of Holders
holding at least $3 million of Registrable Securities, the Company will
promptly notify in writing all other Holders of Registrable Securities
of such request, which Holders shalt within twenty days following such
notice from the Company, notify the Company in writing whether such
persons desire to have Registrable Securities held by them included in
such offering. Following the expiration of such twenty day period. the
Company will use all reasonable efforts to cause the registration of
all Registrable Securities proposed to be included in the offering on
Form S-3 or such successor form to the extent so requested.
Notwithstanding the above, the Company shall not be required under this
Section 1.3 to include any of the Holders' Registrable Securities in
any offering, on Form S-3 which involves an underwriting unless such
Holders accept the terms of such underwriting as agreed upon between
the Company and the underwriters selected by it.
(b) Notwithstanding anything in this Section 1.3 to the
contrary, the Company shall not be obligated to prepare or file any
registration statement pursuant to this Section 1.3 or to prepare or
file any amendment or supplement thereto, at any time when the Company,
in the good faith judgment of its Board or Directors, reasonably
believes that the filing thereof at the time requested, or the offering
of securities pursuant thereto, (i) would materially adversely affect a
pending or proposed public offering of the Company's securities, or an
acquisition, merger, recapitalization, consolidation, reorganization or
similar transaction, negotiations, discussions or pending proposals
with respect thereto or (ii) would materially adversely affect the
business or prospects of the Company in view of the disclosures that
may be required thereby of information about the business, assets,
liabilities
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or operations of the Company not theretofore disclosed; provided,
however, that the filing of a registration statement, or any supplement
or amendment thereto, by the Company may be deferred pursuant to this
Section 1.3 for no longer than 180 days (but only once in every twelve
month period) after the delivery of such demand notice.
1.4 Piggyback Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
Common Stock or other securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than an initial public
offering, registration relating solely to the sale of securities to participants
in a Company stock option, stock purchase or similar employee benefit plan, a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities (including Form S-4 or any form
substitution thereof) or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered or a SEC Rule 145 transaction), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty days after mailing of such
notice by the Company, the Company shall, subject to the provisions of Section
1.8, use all reasonable efforts to cause to be registered under the 1933 Act and
any applicable state securities laws all of the Registrable Securities that each
such Holder has requested to be registered.
1.5 Obligations of the Company. Whenever under this Section 1 the
Company effects the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC on any appropriate form a
registration statement with respect to the Registrable Securities
proposed to be registered and use its best efforts to cause such
registration statement to become effective;
(b) Unless such registration is a firm commitment
underwriting; prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the 1933 Act with respect to the disposition of
all Registrable Securities and other securities covered by such
registration statement for a period of 180 days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register or qualify, all
Registrable Securities and other securities covered by such
registration statement under such other securities or "blue sky"
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laws of such jurisdictions as the underwriter or such sellers (not to
exceed ten jurisdictions) shall reasonably request and do any and all
other acts and things as may be reasonably necessary to consummate the
disposition in such jurisdictions of the Registrable Securities covered
by such registration statement, except that the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified,
or to subject itself to taxation in respect of doing business in any
such jurisdiction, or to consent to general service of process in any
such jurisdiction.
(e) Immediately notify each seller or Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act, of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing
or if its is necessary, in the opinion of counsel to the Company, to
amend or supplement such prospectus to comply with law, and at the
request of any such seller prepare and to such seller a reasonable
number of copies of a supplement to or any amendment of such prospectus
as may be necessary, so that, as thereafter delivered to the purchasers
of such Registrable Securities. such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing
and shall otherwise comply in all material respects with law and so
that such prospectus, as amended or Supplemented, will comply with law.
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, any make available to its
securityholders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, beginning
with the first month of the first fiscal quarter after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the 1933 Act.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
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(i) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or automated trading
system on which similar securities issued by the Company are then
listed.
(j) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective
date of such registration.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section I with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.7 Expenses of Registration. All expenses incurred in connection with
registrations, filings or qualifications pursuant to this Section 1, in
connection with three demand registrations, all piggyback registrations and all
S-3 registrations including. Without limitation, all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and one counsel for the Selling Holders (but excluding
fees and disbursements of more than one counsel to the selling Holders,
underwriter's commissions and fees and any fees of others employed by a selling
Holder) shall be borne by the Company.
1.8 Underwriting Requirements; Cut-backs.
(a) In connection with any offering involving an underwriting
of shares of the Company's capital stock, the Company shall not be
required to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as
the underwriters determine in their sole discretion will not materially
jeopardize or in any way reduce the success of the offering by the
Company.
(b) The Company has previously granted "piggyback"
registration rights to certain of its security holders (the "Other
Holders"). Notwithstanding any thing in this Section 1 to the contrary,
in the event of any request for registration hereunder, the Company
shall provide each Other Holder the notice required with respect to
their registration rights and will allow such Other Holders to
participate in any such registration to the extent of such registration
rights; it being acknowledged and agreed that if the total amount of
securities, including Registrable Securities, requested by security
holders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters
determine in their sole discretion is compatible with the success of
the Offering, then the Company shall be required to include in the
offering only that number of such
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securities, including Registrable Securities, which the underwriters
determine in their sole discretion will not jeopardize the success of
the offering (the securities so included to be apportioned pro rata
among the selling security holders (including Holders) according to the
total amount of securities entitled to be included therein owned by
each selling shareholder (including Holders) or in such other
proportions as shall mutually be agreed to by such selling shareholders
(including Holders)).
1.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 7.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the 0000
Xxx) for such Holder and each person, if any, who controls such Holder
or underwriter within the meaning of the 1933 Act or the 1934 Act
against any losses, claims, damages, or liabilities joint or several)
to which they may become subject under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company
of the. 1933 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the 1933 Act, the 1934 Act or any state
securities law; and, subject to subsection 1.10(c) below, the Company
will pay to each such Holder, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the
Company (which consent shall not be reasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning
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of the 1933 Act, any underwriter, any other Holder selling securities
in such registration statement and any controlling person of any such
underwriter or other Holder, and any agent of the Company, against any
losses, claims, damages, or liabilities joint or several) to which any
of the foregoing persons may become subject, under the 1933 Act, the
1934 Actor other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly
for use in connection with such registration and each such Holder will
pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection
1.10(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be reasonably withheld;
provided, that, in no event shall any indemnity under this subsection
1.10(b) exceed the gross proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 1.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party receiving similar notice, to
assume the defense thereof with counsel reasonably satisfactory to the
parties; provided, however, that an indemnified party (together with
all other indemnified party which may be represented without conflict
by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding; otherwise, the
indemnified party shall be responsible for the fees and expenses of its
counsel. The failure to deliver written notice to the indemnifying,
party within a reasonable time of the commencement of any such action,
if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 1.10.
(d) Except as provided in the last sentence of subsection
1.10(c) above, if the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage,
or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the one
A-8
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hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting, agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this
Section 1.
1.11 Assignment of Registration Rights. The registration rights of the
Holders under this Section 1 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities who
purchases from such Holder least 10,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) the Company is promptly
after such transfer, furnished with notice of the name and address of such
transferee or assignee and the securities with respect to which such piggyback
registration rights are being assigned: (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions or this
Agreement, including without limitation the provisions of Section 1.12 below;
and (c) such assignment shall be effective only immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the 0000 Xxx.
1.12 "Lock-up" Agreement. Each Holder hereby agrees that if requested
by the Company or the underwriters in any underwritten offering, Such Holder
shall not, for the period of 180 days after the effective date of an
underwritten public offering of shares of Common Stock, without the prior
written approval of the Company or such underwriters (as the case may be),
directly or indirectly, sell, offer to sell, contract to sell (including without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of any shares of Series C Stock or underlying Common Stock legally or
beneficially owned by such Holder; provided, however, in the event of an initial
public offering of Common Stock. no request shall be necessary, with the consent
of such Holder to the above provisions in this Section 1.12 being, hereby
granted and accepted. In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Registrable Securities
of each Holder (and the shares or securities of every, other person subject to
the foregoing restriction) until the end of such period.
1.13 Termination of Registration Rights. Notwithstanding anything in
this Section 1 to the contrary, no Holder shall be entitled to exercise any
right provided for in this Section 1: (i) at any
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time more than four (4) years following the date after the Company becomes a
Public Company or (ii) at such time as such Holder is able to sell all of such
Holder's Registrable Securities in a single three-month period in compliance
with Rule 144.
1.14 Amendments and Waivers. Any term or provision of the registration
rights stated in this Section 1 may be amended and the observance of any term of
such rights may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the holders of at a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this Section
1.14 shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
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