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EXHIBIT 5
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of December 20, 1996 between ALCOHOL SENSORS INTERNATIONAL,
LTD., a New York corporation (the "Company"), and AMERICAN INTERNATIONAL
INSURANCE COMPANY, a New York corporation (the "Securityholder").
The Securityholder is the beneficial owner of certain
Registrable Securities (as defined below) issued by the Company pursuant to the
Purchase Agreement (as defined below). The Company and the Securityholder deem
it to be in their respective best interests to set forth, among other things,
the rights of the Securityholder in connection with public offerings and sales
of the Registrable Securities.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Company and the
Securityholder, intending legally to be bound, hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" shall mean any day other than Saturday and
Sunday and any other day on which banking institutions in the State of New York
are required or authorized by law to close.
"Capital Stock" shall mean all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock.
"Common Stock" shall mean the common stock, par value $0.001
per share, of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended (or any similar successor federal statute), and the rules and
regulations thereunder, as the same are in effect from time to time.
"Hold-Back Election" shall have the meaning set forth in
Section 6(a) hereof.
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"Holder" shall mean any Person that owns Registrable
Securities, including such successors and assigns as acquire Registrable
Securities, directly or indirectly, from such Person. For purposes of this
Agreement, the Company may deem the registered holder of a Registrable Security
as the Holder thereof.
"Material Development Election" shall have the meaning set
forth in Section 6(b) hereof.
"Other Approved Holders" shall mean holders of Common Stock
having registration rights with respect to the Common Stock, other than under
this Agreement, which registration rights have been consented to in writing by
the Securityholder.
"Person" shall mean an individual, partnership, corporation,
limited liability company, joint venture, trust or unincorporated organization,
a government or agency or political subdivision thereof or any other entity.
"Preferred Stock" shall mean the Company's Series A Cumulative
Non- redeemable Convertible Preferred Stock, par value $0.001 per share.
"Prospectus" shall mean the prospectus (including a
preliminary prospectus) included in any Registration Statement, as amended or
supplemented by a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
"Purchase Agreement" shall mean the Convertible Preferred
Stock and Warrant Purchase Agreement dated as of the date hereof between the
Company and the Securityholder.
"Registrable Securities" shall mean (i) the Common Stock
issued or issuable upon conversion of the Preferred Stock or the exercise of the
Warrants; and (ii) any other Capital Stock or other securities issued or
issuable as a result of or in connection with any stock dividend, stock split or
reverse stock split, combination, recapitalization, reclassification, merger or
consolidation, exchange, distribution or similar transaction in respect of the
Common Stock.
"Registration Expenses" shall have the definition set forth in
Section 7 hereof.
"Registration Statement" shall mean any registration statement
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"Restricted Security" shall have the meaning set forth in
Section 2 hereof.
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"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 424" shall mean Rule 424 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"SEC" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended (or any similar successor federal statute), and the rules and
regulations thereunder, as the same are in effect from time to time.
"Shelf Registration" shall mean the registration of
Registrable Securities for sale on a continuous or delayed basis pursuant to
Rule 415.
"Shelf Registration Statement" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"Underwritten Offering" shall mean a registered offering in
which securities of the Company are sold to an underwriter for reoffering to the
public.
"Warrants" shall mean the Warrants of the Company exercisable
for shares of Common Stock purchased by the Securityholder from the Company
pursuant to the Purchase Agreement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT. The
securities entitled to the benefits of this Agreement are the Registrable
Securities but, with respect to any particular Registrable Security, only so
long as such security continues to be a Restricted Security. A Registrable
Security that has ceased to be a Registrable Security cannot thereafter become a
Registrable Security. As used herein, a "Restricted Security" is a Registrable
Security which has not been effectively registered under the Securities Act and
distributed to any Person in accordance with an effective Registration Statement
and which has not been distributed by a Holder to any Person pursuant to Rule
144.
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SECTION 3. DEMAND REGISTRATION.
(a) Demand. Upon the written request of the Securityholder or
a Holder or Holders of a majority of the then outstanding Registrable Securities
(on a Common Stock equivalent basis) requesting that the Company effect the
registration under the Securities Act of Registrable Securities and specifying
the intended method or methods of disposition thereof (which may include a
continuous or delayed offering), the Company will use its best efforts to
effect, as expeditiously as possible, the registration under the Securities Act
of the Registrable Securities which the Company has been so requested to
register by the Securityholder or such Holder or Holders of Registrable
Securities; provided, however, that, except as provided below, the Company shall
not be obligated to (1) effect more than an aggregate of two (2) demand
registrations pursuant to this Section 3; or (2) effect a demand registration
unless either (I) the Registrable Securities for which the demand is made
constitute at least one-half of the then outstanding Registrable Securities (on
a Common Stock equivalent basis) or (II) the demand is made with respect to all
of the Registrable Securities then beneficially owned by the Securityholder or
the demanding Holder or Holders, provided such Registrable Securities constitute
at least 10% of the Registrable Securities initially issued by the Company (on a
Common Stock equivalent basis); and provided further that no Holder (including
the Securityholder) shall deliver a request for a demand registration for a
period of four (4) months following the last date on which a Registration
Statement filed in respect of the previous demand registration, if any, was
declared by the SEC to be effective. The number, percentage or kind of shares in
clause (2) above shall be appropriately adjusted for any stock dividend, stock
split, reverse stock split, combination, recapitalization, reclassification,
merger, consolidation, exchange, distribution or similar transaction with
respect to the shares of Common Stock. Notwithstanding the foregoing, the
Securityholder or a Holder or Holders of a majority of the then outstanding
Registrable Securities (on a Common Stock equivalent basis) shall be entitled to
unlimited additional demand registrations if such additional demand
registrations would be eligible for registration on Form S-3 (after the Company
qualifies for Form S-3, provided that in the case of any individual such demand
registration the aggregate gross proceeds from such S-3 demand registration
would exceed $500,000, if all registered shares thereunder were sold); provided,
however, that there shall be no more than two (2) such registrations in any
twelve (12) month period.
Upon receipt of any request for registration pursuant to this
Section 3 from the Securityholder or any Holder or Holders of Registrable
Securities, the Company shall promptly (but in any event within 20 days) give
written notice of such request to all other Holders. The Company shall include
in the requested registration all Registrable Securities requested to be
included by such of the other Holders who shall make such request by written
notice to the Company delivered within 30 days of their receipt of the Company's
notice. If the Company shall receive a request for inclusion in the registration
of the Registrable Securities of additional Holders, it shall promptly so inform
in writing the Person or Persons who made the initial request for registration.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
the proposed public offering advises the Holder or Holders intending to
participate in such proposed public offering in writing that the total amount or
kind of securities which such Holder
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or Holders intends to include in such proposed public offering is sufficiently
large to materially adversely affect the success of the proposed public
offering, then the amount or kind of securities to be offered for the accounts
of all Holders whose securities are included in such Registration Statement
shall be reduced (on a pro rata basis in the case of more than one such Holder)
to the extent necessary to reduce the total amount or kind of securities to be
included in such proposed public offering to the amount or kind recommended by
such managing underwriter or underwriters. The Company shall not register any
securities other than Registrable Securities in any demand registration effected
pursuant to this Section 3(a), except pursuant to Section 3(c) or with the prior
written consent of the Securityholder (if it is participating in such offering)
or, if the Securityholder is not participating in such offering, the Holders of
a majority of the Registrable Securities (on a Common Stock equivalent basis)
being sold pursuant to such offering.
A Holder (including the Securityholder) or Holders requesting
a registration pursuant to this Section 3 may, at any time prior to the
effective date of the Registration Statement relating to such registration,
revoke such request by providing a written notice to the Company revoking such
request. The Company shall be required to pay all Registration Expenses with
respect to the first demand for registration to be revoked. If a Holder
(including the Securityholder) or Holders thereafter shall revoke any demand for
registration, such Holder (including the Securityholder) or Holders, at their
option, shall either pay all out-of-pocket Registration Expenses with respect to
such revoked demand or count such revoked demand as one of the demands for
registration to which Holders are entitled pursuant to this Section 3.
(b) Effectiveness of Registration Statement. The Company
agrees to use its best efforts to (i) cause the Registration Statement relating
to any demand registration pursuant to this Section 3 to become effective as
expeditiously as possible; (ii) thereafter keep such Registration Statement
effective continuously for the period specified in the next succeeding paragraph
and to permit the sale of such Registrable Securities in accordance with the
intended method or methods of distribution thereof; and (iii) prevent the
happening of any event of the kinds described in clauses (4), (5) and (6) of
Section 5(a)(ii).
A demand registration requested pursuant to this Section 3
will not be deemed to have been effected unless the Registration Statement
relating thereto has become effective under the Securities Act and remained
continuously effective (except as otherwise permitted under this Agreement) for
a period ending on the earlier of (i) the date that is nine (9) months after the
effective date of such Registration Statement (subject to extension as provided
in the final paragraph of Section 5(a), Section 6(a) and Section 6(b)) and (ii)
the date on which all Registrable Securities covered by such Registration
Statement have been sold and the distribution contemplated thereby has been
completed; provided, however, that if, after such Registration Statement has
become effective, the offering of the Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or similar order
of the SEC or other governmental agency or court (other than by reason of any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information or affidavit furnished in
writing by
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a Holder to the Company specifically for inclusion therein), such registration
will be deemed not to have been effected.
(c) Inclusion of Securities of Other Approved Holders. The
Company and any Other Approved Holder may include its securities in any demand
registration effected pursuant to this Section 3 that is not a Shelf
Registration; provided, however, that if the managing underwriter or
underwriters of the proposed public offering advises the Holder or Holders
intending to participate in such proposed public offering in writing that the
total amount or kind of securities which such Holders, the Company and such
Other Approved Holders intend to include in such proposed public offering is
sufficiently large to materially adversely affect the success of the proposed
public offering requested by such Holder or Holders, then the amount or kind of
securities to be offered for the accounts of the Other Approved Holders shall be
reduced pro rata among such Other Approved Holders to the extent necessary to
reduce the total amount or kind of securities to be included in such proposed
public offering to the amount or kind recommended by such managing underwriter
or underwriters and, if such reduction results in no securities being offered
for the accounts of the Other Approved Holders in such proposed public offering,
then the amount or kind of securities to be offered for the account of the
Company shall be reduced to the extent necessary to reduce the total amount or
kind of securities to be included in such proposed public offering to the amount
or kind recommended by such managing underwriter or underwriters.
SECTION 4. PIGGYBACK REGISTRATION. If the Company at any time
proposes to file a registration statement with respect to any class of equity
securities, whether for its own account (other than in connection with the
Registration Statement contemplated by Section 3 or a registration statement on
Form S-4 or S-8 (or any successor or substantially similar form), or the
registration of (A) an employee stock option, stock purchase or compensation
plan or of securities issued or issuable pursuant to any such plan or (B) a
dividend reinvestment plan) or for the account of an Other Approved Holder (a
"Requesting Securityholder"), then the Company shall in each case give written
notice of such proposed filing to all Holders of Registrable Securities at least
20 days before the anticipated filing date of any such registration statement by
the Company, and such notice shall offer to all Holders the opportunity to have
any or all of the Registrable Securities held by such Holders included in such
registration statement. Each Holder of Registrable Securities desiring to have
its Registrable Securities registered under this Section 4 shall so advise the
Company in writing within 15 days after the date of receipt of such notice
(which request shall set forth the amount of Registrable Securities for which
registration is requested), and the Company shall include in such Registration
Statement all such Registrable Securities so requested to be included therein on
the same terms and conditions as the securities being registered by the Company.
Any Holder's request for such inclusion may be withdrawn, in whole or in part,
at any time prior to the effective date of such Registration Statement.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
any such proposed public offering advises the Company in writing that the total
amount or kind of securities which the Holders of Registrable Securities, the
Company and the Other Approved Holders intend to be included in such proposed
public offering is sufficiently large to materially adversely affect the success
of such proposed public offering, then the amount or kind of securities to be
offered for
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the accounts of Holders of Registrable Securities and the Other
Approved Holders shall be reduced pro rata to the extent necessary to reduce the
total amount or kind of securities to be included in such proposed public
offering to the amount or kind recommended by such managing underwriter or
underwriters before the securities offered by the Company or any Requesting
Securityholder are so reduced.
SECTION 5. REGISTRATION PROCEDURES.
(a) General. In connection with the Company's
registration obligations pursuant to Sections 3 and 4 hereof, the Company will,
as expeditiously as practicable:
(i) prepare and file with the SEC a new Registration
Statement or such amendments and post-effective amendments to an
existing Registration Statement as may be necessary to keep such
Registration Statement effective for the time periods set forth in
Section 3(b), provided that no Registration Statement shall be required
to remain in effect after all Registrable Securities covered by such
Registration Statement have been sold and distributed as contemplated
by such Registration Statement, and provided, further, that as soon as
practicable, but in no event later than three (3) Business Days before
filing such Registration Statement, any related Prospectus or any
amendment or supplement thereto, other than any amendment or supplement
made solely as a result of incorporation by reference of documents
filed with the SEC subsequent to the filing of such Registration
Statement, the Company shall furnish to the Holders of the Registrable
Securities covered by such Registration Statement and the underwriters,
if any, copies of all such documents proposed to be filed, which
documents shall be subject to the review of such Holders and
underwriters; the Company shall not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other
than any amendment or supplement made solely as a result of
incorporation by reference of documents filed with the SEC subsequent
to the filing of such Registration Statement) to which the managing
underwriters of the applicable offering, if any, or the Securityholder
(if it is participating in such offering) or the Holders of a majority
of the Registrable Securities (on a Common Stock equivalent basis)
covered by such Registration Statement shall have reasonably objected
in writing within three (3) Business Days after receipt of such
documents to the effect that such Registration Statement or amendment
thereto or Prospectus or supplement thereto does not comply in all
material respects with the requirements of the Securities Act (provided
that the foregoing shall not limit the right of any Holder whose
Registrable Securities are covered by a Registration Statement to
reasonably object, within two (2) Business Days after receipt of such
documents, to any particular information that is to be contained in
such Registration Statement, amendment, Prospectus or supplement that
relates specifically to such Holder, including any information
describing the manner in which such Holder acquired such Registrable
Securities and the intended method or methods of distribution of such
Registrable Securities), and if the Company is unable to file any such
document due to the objections of such underwriters, the Securityholder
or such Holders, the Company shall use its best efforts to cooperate
with such underwriters, the Securityholder and Holders to prepare, as
soon as practicable, a document that is responsive in all material
respects to the
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reasonable objections of such underwriters, the Securityholder and
Holders; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424; and comply with the provisions of the Securities Act
applicable to the Company with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement, Prospectus or supplement to the Prospectus (it being
understood that the Company shall not be deemed to have used its best
efforts to keep a Registration Statement effective during the
applicable period if any action is taken by the Company that would
result in Holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period
unless such action is required under applicable law or is contemplated
under the last paragraph of Section 5(a), Section 6(a) or Section
6(b));
(ii) notify the selling Holders of Registrable
Securities and the managing underwriters, if any, promptly (providing
confirmation in writing) (1) when a new Registration Statement,
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any new Registration Statement or
post-effective amendment, when it has become effective, (2) of any
request by the SEC for amendments or supplements to any Registration
Statement or Prospectus or for additional information, (3) of the
issuance by the SEC of any comments with respect to any filing, (4) of
any stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that purpose, (5) in
the case of an Underwritten Offering, if at any time the
representations and warranties of the Company contemplated by paragraph
(xi) below cease to be true and correct as of any time they are
required to be true and correct, (6) of any suspension of the
qualification or registration (or exemption therefrom) of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (7) of the
happening of any event which makes any statement of a material fact
made in any Registration Statement, Prospectus or any document
incorporated therein by reference untrue or which requires the making
of any changes in any Registration Statement, Prospectus or any
document incorporated therein by reference so that it will not contain
any 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 the case of any Prospectus or supplement, in the light of
the circumstances under which they were made) not misleading; and make
every reasonable effort to obtain as soon as possible the withdrawal of
any order or other action suspending the effectiveness of any
Registration Statement or suspending the qualification or registration
(or exemption therefrom) of the Registrable Securities for sale in any
jurisdiction;
(iii) if reasonably requested by the managing
underwriter or underwriters or a Holder of Registrable Securities being
sold in connection with an Underwritten Offering, promptly incorporate
in a Prospectus supplement or post-effective amendment such information
as the managing underwriters, the Securityholder (if it is
participating
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in such offering) and the Holders of a majority of the Registrable
Securities (on a Common Stock equivalent basis) being sold in such
Underwritten Offering reasonably agree should be included therein
relating to the sale of the Registrable Securities, including
information with respect to the aggregate number of shares of
Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any
other terms of the Underwritten Offering of the Registrable Securities
to be sold in such offering; and promptly make all required filings of
such Prospectus supplement or post-effective amendment;
(iv) promptly after the filing of any document which
is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders of
the Registrable Securities covered thereby and the underwriters, if
any;
(v) promptly after the filing of such documents with
the SEC, furnish to each selling Holder of Registrable Securities and
each managing underwriter, if any, without charge, at least one
manually signed or "edgarized" copy (but not to exceed five manually
signed copies of any document to all selling Holders and underwriters
in the aggregate), and as many conformed copies as may reasonably be
requested, of the then effective Registration Statement and any
post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those previously furnished or incorporated by
reference);
(vi) deliver to each selling Holder of Registrable
Securities and the underwriters, if any, without charge, as many copies
of the then effective Prospectus (including each prospectus subject to
completion) and any amendments or supplements thereto as such Persons
may reasonably request; subject to the last paragraph of this Section
5(a), the Company consents to the use of any such Prospectus or any
amendment or supplement thereto by the Holders and the underwriters, if
any, in connection with the offering and sale of the Registrable
Securities covered by any such Prospectus or any amendment or
supplement thereto;
(vii) register or qualify (or obtain exemption
therefrom) or cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption
therefrom) of such Registrable Securities for the offer and sale under
the securities or blue sky laws of such jurisdictions as any selling
Holder of Registrable Securities or underwriter, if any, reasonably
requests in writing; use its best efforts to keep each such
registration or qualification (or exemption therefrom) effective during
the period during which such registration statement is required to be
kept effective pursuant to this Agreement; and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the then effective Registration Statement; provided, however, that
the Company will not be required to qualify to do
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business in any jurisdiction where it would not otherwise be required
to qualify, but for this paragraph (vii);
(viii) cooperate with the selling Holders of
Registrable Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters may request at least two (2) Business Days prior to any
sale of Registrable Securities to the underwriters;
(ix) upon the occurrence of any event
contemplated by clause (7) of paragraph (ii) above, promptly prepare a
supplement or post-effective amendment to the Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which they
were made, not misleading; if any event described in clause (2) of
paragraph (ii) above occurs, use its best efforts to cooperate with the
SEC to prepare, as soon as practicable, any amendment or supplement to
such Registration Statement or such related Prospectus and any other
additional information, or to take other action that may have been
requested by the SEC;
(x) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange (or
quotation system operated by a national securities association) on
which identical securities issued by the Company are then listed (or
included) if requested by the Securityholder (if it is participating in
such offering) or the Holders of a majority of the Registrable
Securities (on a Common Stock equivalent basis) covered by such
Registration Statement or the managing underwriters, if any, and enter
into customary agreements including, if necessary, a listing
application and indemnification agreement in customary form, and
provide a transfer agent for such Registrable Securities no later than
the effective date of such Registration Statement;
(xi) enter into customary agreements (including in
the case of an Underwritten Offering, an underwriting agreement in
customary form for the managing underwriters with respect to issuers of
similar market capitalization and reporting and financial histories)
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities
included in such Registration Statement, in each case, in connection
with an Underwritten Offering, as the underwriters determine is
reasonable and customary, and in connection therewith, (1) make such
representations and warranties to the Holders of such Registrable
Securities and each of the underwriters in such form, substance and
scope as are customarily made by issuers to underwriters in secondary
underwritten offerings; (2) obtain opinions of counsel to the Company
addressed to each selling Holder of such Registrable Securities and to
each of the underwriters and updates thereof (which counsel and
opinions (in form, scope and
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substance) shall be reasonably satisfactory to the underwriters and the
selling Holders of such Registrable Securities and shall cover the
matters customarily covered in opinions requested in secondary
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters); (3) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company addressed to each selling Holder of such
Registrable Securities and each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with secondary underwritten
offerings; (4) the underwriting agreement shall contain indemnification
and contribution provisions and procedures no less favorable than those
set forth in Section 8 hereof with respect to all parties to be
indemnified pursuant to Section 8; and (5) the Company shall deliver
such documents and certificates as may be reasonably requested by the
selling Holders of such Registrable Securities and the managing
underwriters to evidence compliance with clause (1) above and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company in respect of the relevant
offering;
(xii) provide a CUSIP number for the Registrable
Securities no later than the effective date of such registration
statement;
(xiii) in the case of any nonunderwritten offering:
(1) obtain opinions of counsel to the Company at the time of
effectiveness of such Registration Statement covering such offering and
updates thereof of customary frequency, addressed to each Holder of any
Registrable Securities participating in such offering and covering
matters that are no more extensive in scope than would be customarily
covered in opinions obtained in secondary underwritten offerings by
issuers with similar market capitalization and reporting and financial
histories; (2) obtain "cold comfort" letters from the independent
certified public accountants of the Company at the time of
effectiveness of such Registration Statement and, upon the request of
the Securityholder (if it is participating in such offering) or the
Holders of a majority of the Registrable Securities (on a Common Stock
equivalent basis) covered by such Registration Statement, updates
thereof of customary frequency, in each case addressed to each Holder
of Registrable Securities participating in such offering and covering
matters that are no more extensive in scope than would be customarily
covered in "cold comfort" letters and updates obtained in secondary
underwritten offerings by issuers with similar market capitalization
and reporting and financial histories; and (3) deliver a certificate of
a senior executive officer of the Company at the time of effectiveness
of such Registration Statement and, upon the request of the
Securityholder (if it is participating in such offering) or the Holders
of a majority of the Registrable Securities (on a Common Stock
equivalent basis) covered by such Registration Statement, updates
thereof of customary frequency, such certificates to cover matters no
more extensive in scope than those matters customarily covered in
officer's certificates delivered in connection with underwritten
offerings by issuers with similar market capitalization and reporting
and financial histories;
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(xiv) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC relating to such
registration and the distribution of the securities being offered and
make generally available to its securities holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no
later than 60 days after the end of any 12-month period (or 120 days,
if such period is a fiscal year) commencing at the end of any fiscal
quarter in which the Registrable Securities are sold to underwriters in
a firm commitment or best efforts underwritten offering, or, if not
sold to underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of such Registration Statement, which earnings
statements shall cover such 12-month periods;
(xv) cooperate and assist in any filings
required to be made with the National Association of Securities
Dealers, Inc. and in the performance of any customary or required due
diligence investigation;
(xvi) make available for inspection by the Holders of
the Registrable Securities covered by such Registration Statement, any
underwriter participating in any disposition pursuant to such
registration, and any attorney, accountant or other representative
retained by such sellers or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to supply all
information reasonably requested by, and to cooperate fully with, any
such representative, underwriter, attorney or accountant in connection
with such registration;
(xvii) subject to the proviso in paragraph (vii)
above, cause the Registrable Securities covered by the Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities; and
(xviii) use its best efforts to take all action
necessary or advisable to effect such registration in the manner
contemplated by this Agreement.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5(a)(ii) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
(but, in the case of an event described in Section 5(a)(ii)(6), in the affected
jurisdiction or jurisdictions only) pursuant to the then current Prospectus
until (1) such Holder is advised in writing by the Company that a new
Registration Statement covering the offer of
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13
Registrable Securities has become effective under the Securities Act or (2) such
Holder receives copies of a supplemented or amended Prospectus contemplated by
this Section 5(a), or until such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed. If the Company shall have given
any such notice during a period when a demand registration is in effect, the
Company shall extend the period during which such registration statement shall
be maintained effective pursuant to this Agreement by the number of days during
which any such disposition of Registrable Securities is discontinued pursuant to
this paragraph. The Company shall use its best efforts to limit the duration of
any discontinuance with respect to the disposition of Registrable Securities
pursuant to this paragraph.
(b) Additional Procedures for Shelf Registration. If the
Holders become entitled, pursuant to an event described in clause (ii) of the
definition of Registrable Securities, to receive any securities in respect of
Registrable Securities that were already included in a Shelf Registration
Statement, subsequent to the date such Shelf Registration Statement is declared
effective, and the Company is unable under the securities laws to add such
securities to the then-effective Shelf Registration Statement, the Company, as
promptly as practicable, shall file, in accordance with the procedures more
particularly set forth in Section 5(a), an additional Shelf Registration
Statement with respect to any such new Registrable Securities. The Company shall
use its best efforts to have any such additional Registration Statement declared
effective as promptly as practicable after such filing and to keep such
additional Shelf Registration Statement continuously effective during the period
specified in Section 3(b). A request to file an additional Shelf Registration
Statement pursuant to this paragraph shall not constitute a demand under Section
3(a).
SECTION 6. HOLDBACK AGREEMENTS.
(a) Hold-Back Election. Subject to Section 6(c), in the case
of the registration of any underwritten primary offering initiated by the
Company (other than any registration by the Company on Form S-4 or Form S-8 (or
any successor or substantially similar form), or the registration of (A) an
employee stock option, stock purchase or compensation plan or of securities
issued or issuable pursuant to any such plan or (B) a dividend reinvestment
plan) or any underwritten secondary offering initiated at the request of an
Other Approved Holder, each Holder agrees, if and to the extent requested in
writing by the managing underwriter or underwriters administering such offering
as promptly as reasonably practicable prior to the commencement of the 10-day
period referred to below (a "Hold-Back Election"), not to effect any public sale
or distribution of securities of the Company except as part of such underwritten
registration, during the period beginning 10 days prior to the effective date of
the applicable registration statement relating to such underwritten offering and
ending on the earlier of (i) 90 days after such effective date and (ii) the date
such sale or distribution is permitted by such managing underwriter or
underwriters. In the event such managing underwriter or underwriters shall
exercise a Hold-Back Election during a period when a Registration Statement
filed pursuant to Section 3 is in effect, the time period specified in Section
3(b) during which such Registration Statement is required to be kept effective
shall be extended by the number of days during which the Holders are prohibited
by such underwriter or underwriters from publicly selling or distributing their
securities.
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14
Notwithstanding the foregoing provisions of this Section 6(a), no
Holder shall be obligated to refrain from making any public sale or distribution
of securities of the Company in the case of any underwritten secondary offering
initiated at the request of any Person who has not agreed in writing to
expressly recognize and give effect to the Holders' rights under this Section
6(a), and to be subject to provisions that are at least as favorable to the
Holders as the provisions contained in this Section 6(a) are to such holder.
(b) Material Development Election. Subject to Section 6(c),
the Company shall be entitled, for a period of time not to exceed 90 consecutive
days, to postpone the filing of any Registration Statement otherwise required to
be prepared and filed by it pursuant to Section 3 and/or to request that the
Holders refrain from effecting any public sales or distributions of their
Registrable Securities if the board of directors of the Company in good faith
determines in its reasonable business judgment that such registration and/or
such public sales or distributions would interfere in any material respect with
any financing (other than an underwritten secondary offering of any securities
of the Company), acquisition, corporate reorganization or other transaction or
development involving the Company or any subsidiary of the Company that in the
reasonable good faith business judgment of such board is a transaction or
development that is or would be material to the Company (a "Material Development
Election"). The board of directors of the Company shall, as promptly as
practicable, give the Holders written notice of any such Material Development
Election. In the event of a determination by the board of directors to postpone
the filing of a Registration Statement required to be filed under Section 3
hereof, the Company shall be required to file such Registration Statement as
soon as practicable after the board of directors of the Company shall determine,
in its reasonable business judgment, that the filing of such Registration
Statement and the offering thereunder shall not interfere with the aforesaid
material transaction or development, but in any event no later than the end of
such 90-day period. In addition, if the board of directors of the Company has
requested that the Holders refrain from making public sales or distributions of
their Registrable Securities, such board shall, as promptly as practicable
following its determination that the Holders may recommence such public sales
and distributions, notify such Holders in writing of such determination (but in
any event no later than the end of such 90-day period). In the event the Company
shall exercise a Material Development Election during a period when a
Registration Statement filed pursuant to Section 3 is in effect, the time period
specified in Section 3(b) during which such Registration Statement is required
to be kept effective shall be extended by the number of days during which the
Holders are prohibited by the Company from publicly selling or distributing
their securities.
(c) Hold-Back Limitation. In no event shall the restrictions
under Section 6(a) or Section 6(b), pursuant to one or more Hold-Back Elections
or Material Development Elections, remain in effect for more than 90 days in the
aggregate in any calendar year.
(d) Company Hold-Back. In the case of each underwritten
offering of Registrable Securities pursuant to Section 3, including under any
Shelf Registration Statement, the Company agrees, if and to the extent requested
in writing by the managing underwriter or underwriters administering such
offering as promptly as reasonably practicable prior to the commencement of the
10-day period referred to below, not to effect any public sale or distribution
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15
(other than sales pursuant to the same Registration Statement, as permitted
under this Agreement, or any registration by the Company on Form S-4 or S-8 (or
any successor or substantially similar form) or the registration of (A) an
employee stock option, stock purchase or compensation plan or of securities
issued or issuable pursuant to any such plan or (B) a dividend reinvestment
plan) of any securities of the Company during the period beginning 10 days prior
to the effective date of the applicable registration statement relating to such
underwritten offering of Registrable Securities and ending on the earlier of (i)
90 days after such effective date and (ii) the date such sale or distribution is
permitted by such managing underwriter or underwriters. Any agreement entered
into after the date of this Agreement pursuant to which the Company issues or
agrees to issue any privately placed securities similar to any issue of the
Registrable Securities shall contain a provision under which holders of such
securities agree not to effect any public sale or distribution of any such
securities during the period described in the next preceding sentence.
SECTION 7. REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications or registrations (or the obtaining of
exemptions therefrom) of the Registrable Securities), printing expenses
(including expenses of printing Prospectuses), messenger and delivery expenses,
internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties), fees and disbursements of its
counsel and its independent certified public accountants (including the expenses
of any special audit or "comfort" letters required by or incident to such
performance or compliance), securities acts liability insurance (if the Company
elects to obtain such insurance), fees and expenses of any special experts
retained by the Company in connection with any registration hereunder, fees and
expenses of other Persons retained by the Company, fees and expenses of one
counsel for the Holders, selected by the Securityholder (if it is participating
in such offering) or, if the Securityholder is not participating in such
offering, by the Holders of a majority of the Registrable Securities (on a
Common Stock equivalent basis) being sold pursuant to such registration,
incurred in connection with each registration hereunder, and reasonable
out-of-pocket expenses incurred by the Holders (except as set forth in the
proviso hereafter) (all such expenses being referred to as "Registration
Expenses"), shall be borne by the Company, whether or not any registration
statement becomes effective (subject, however, to the provisions of Section
3(a)); provided that Registration Expenses shall not include any underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities.
SECTION 8. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, to the full extent permitted by law, but without
duplication, each Holder of Registrable Securities, its officers, directors,
employees, partners, principals, equity holders, managed or advised accounts,
advisors, representatives and agents, and each Person who controls such Holder
or such other Persons (within the meaning of the Securities Act) and any
investment advisor thereof or agent therefor, against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and reasonable legal fees and expenses) arising out of or based
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16
upon any untrue or alleged untrue statement of a material fact in, or any
omission or alleged omission of a material fact required to be stated in, any
Registration Statement or any Prospectus, or necessary to make the statements
therein (in the case of a Prospectus, in light of the circumstances under which
they were made) not misleading, except in each case insofar, but only insofar,
as the same arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in such Registration Statement or Prospectus, as the case may be,
made or omitted, as the case may be, in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use
therein. The Company shall also indemnify underwriters of the Registrable
Securities, selling brokers, dealer managers and similar securities industries
professionals participating in the distribution, and their officers, directors,
employees, partners, principals, equity holders, advisors, representatives and
agents, and each Person who controls such underwriters or other Persons (within
the meaning of the Securities Act), to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities and
other specified Persons. This indemnity is in addition to any liability that the
Company may otherwise have.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, each such Holder shall furnish to the Company in
writing such information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with such Registration
Statement or any Prospectus, and shall indemnify and hold harmless, to the full
extent permitted by law, but without duplication, the Company, its officers,
directors, shareholders, employees, advisors, representatives and agents, and
each Person who controls the Company or such other Persons (within the meaning
of the Securities Act) and any investment advisor thereof or agent therefor,
against any losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable legal fees and expenses)
arising out of or based upon any untrue or alleged untrue statement of a
material fact in, or any omission or alleged omission of a material fact
required to be stated in, the Registration Statement or any Prospectus, or
necessary to make the statements therein (in the case of a Prospectus, in light
of the circumstances under which they were made) not misleading, in each case to
the extent, but only to the extent, that the same arises out of or is based upon
an untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in such Registration
Statement or Prospectus, as the case may be, made or omitted, as the case may
be, in reliance upon and in conformity with written information furnished to the
Company by such Holder expressly for use therein. The Company shall be entitled
to receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industries professionals participating in the distribution,
to the same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. Notwithstanding any other provision hereof to the
contrary, in no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the net
proceeds actually received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
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17
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification under this Section 8 will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such indemnified Person unless (A) the indemnifying party has agreed to pay such
fees or expenses, (B) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to the
indemnified party in a timely manner or (C) in the reasonable judgment of any
such Person, based upon advice of its counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims (in
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such Person). The indemnifying party will not be subject
to any liability for any settlement made without its consent (but such consent
will not be unreasonably withheld or delayed). No indemnified party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, as well as one local counsel in
each relevant jurisdiction.
(d) Contribution. If for any reason the indemnification
provided for in Section 8(a) or Section 8(b) is unavailable to an indemnified
party, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by the indemnified party
as a result of such loss, claim, damage, liability or expense in such proportion
as is appropriate to reflect not only the relative benefits received by the
indemnifying party and the indemnified party, but also the relative fault of the
indemnifying party and the indemnified party in connection with the actions that
resulted in such loss, claim, damage, liability or expense, as well as any other
relevant equitable considerations, provided that no indemnifying Holder shall be
required to contribute an amount greater than the dollar amount of the net
proceeds actually received by such indemnifying Holder with respect to the sale
of the Registrable Securities giving rise to such contribution obligation. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth herein,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding. The parties hereto agree that
it would not be just and equitable if contribution pursuant to this
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Section 8(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in this paragraph. 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
misrepresentations.
SECTION 9. RULES 144 AND 144A. The Company shall use its best
efforts to make publicly available and available to the Holders, pursuant to
Rule 144, such information as is necessary to enable the Holders to make sales
of Registrable Securities pursuant to that Rule. The Company shall use its best
efforts to file timely with the SEC all documents and reports required of the
Company under the Exchange Act. The Company shall furnish to any Holder, upon
request, a written statement executed on behalf of the Company as to compliance
with the current public information requirements of Rule 144. In addition, the
Company will provide to any Holder of a Registrable Security, or any potential
purchaser of a Registrable Security, upon any such Person's reasonable request,
the information required by paragraph (d)(4) of Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) If any of the Registrable Securities covered by a demand
registration hereunder are to be sold in an Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Securityholder (if it is
participating in such offering) or, if such Securityholder is not so
participating in such offering, the Holders of a majority of the Registrable
Securities (on a Common Stock equivalent basis) included in such offering;
provided that such investment bankers and managers must be reasonably
satisfactory to the Company, acting in good faith.
(b) No Person may participate in any Underwritten Offering
hereunder unless such Person (i) agrees to sell such Person's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements. Nothing in this Section 10 shall be construed to create any
additional rights regarding the registration of Registrable Securities in any
Person otherwise than as set forth herein.
SECTION 11. NO INCONSISTENT AGREEMENTS. The Company (i) except
as set forth on Schedule 11 attached hereto, has not previously entered into any
agreement or understanding that is still in effect on the date hereof pursuant
to which it has granted registration or similar rights to any Person who holds
any of its securities and (ii) shall not enter into any agreement or
understanding (x) with respect to registration or similar rights on any of its
securities with any Person other than an Other Approved Holder or (y) which is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
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SECTION 12. AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this Section 12, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of the Securityholder (if the Securityholder then holds any Registrable
Securities) and the Holders of a majority of the Registrable Securities (on a
Common Stock equivalent basis) then outstanding. Whenever the consent or
approval of Holders of a specified number of Registrable Securities is required
hereunder, Registrable Securities held by the Company or any of its Affiliates
(other than Holders of Registrable Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required number.
SECTION 13. REMEDIES. Each Holder having rights under any
provision of this Agreement shall be entitled to enforce such rights
specifically or to recover damages or to exercise any other remedy available to
it at law or in equity. The foregoing rights and remedies shall be cumulative
and the exercise of any right or remedy provided herein shall not preclude any
Person from exercising any other right or remedy provided herein. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
SECTION 14. NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telecopier or air-courier guaranteeing overnight
delivery:
(a) If to a Holder of Registrable Securities, at the
most current address given by such Holder to the Company, in accordance
with the provisions of this Section 14, which address initially is,
with respect to each Holder, c/o American International Insurance
Company, attention: Xxxxxx Xxxxxx, telecopier no. (000) 000-0000;
confirm no. (000) 000-0000, with a copy to American International
Group, Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxxxx X. Xxxxx; telecopier no. (000) 000-0000; confirm no. (212)
770-5457, and thereafter at such other address as may be designated
from time to time by notice given in accordance with the provisions of
this Section 14.
(b) If to the Company, initially at 00 Xxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, attention: Xxxxxx X. Xxxxxx;
telecopier no. (000) 000-0000; confirm no. (000) 000-0000, and
thereafter at such other address as may be designated from time to time
by notice given in accordance with the provisions of this Section 14.
(c) All such notices and other communications shall
be deemed to have been delivered and received (i) in the case of
personal delivery, telecopier or telegram, on the date of such
delivery, (ii) in the case of air courier, on the Business Day after
the date
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20
when sent and (iii) in the case of mailing, on the third Business Day
following such mailing.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties hereto, including and without the need for an express assignment to
subsequent Holders of the Registrable Securities who cannot freely transfer
their shares in the absence of registration under the Securities Act.
SECTION 16. COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 17. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. The use of the word "including" herein shall be interpreted to
mean "including, without limitation," unless the context clearly requires
another interpretation.
SECTION 18. GOVERNING LAW. This Agreement shall be deemed to
be a contract made under and shall be governed by and construed in accordance
with the internal laws of the State of New York without reference to the
principles of conflict of laws.
SECTION 19. JURISDICTION; FORUM. Each party hereto consents
and submits to the jurisdiction of any state court sitting in the County of New
York or federal court sitting in the Southern District of the State of New York
in connection with any dispute arising out of or relating to this Agreement.
Each party hereto waives any objection to the laying of venue in such courts and
any claim that any such action has been brought in an inconvenient forum. To the
extent permitted by law, any judgment in respect of a dispute arising out of or
relating to this Agreement may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified copy of such
judgment being conclusive evidence of the fact and amount of such judgment. Each
party hereto agrees that personal service of process may be effected by any of
the means specified in Section 14, addressed to such party. The foregoing shall
not limit the rights of any party to serve process in any other manner permitted
by law.
SECTION 20. SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 21. ENTIRE AGREEMENT. This Agreement is intended by
the parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter, whether written or oral.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
ALCOHOL SENSORS
INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
AMERICAN INTERNATIONAL
INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President &
Director
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Schedule 11: Other Registration Rights Agreements
None
