REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.28
This Agreement is made as of August 2, 2000 by and among BIOJECT MEDICAL TECHNOLOGIES INC., an Oregon corporation (the
“Corporation”), and X.X. Xxxxxxxxxx & Co., Inc. (“Xxxxxxxxxx”).
RECITALS
Simultaneously herewith, the Corporation has issued a Series “T” Common Stock Purchase Warrant to Xxxxxxxxxx
to purchase up to an aggregate of 15,000 shares of the Corporation’s Common Stock (the “Warrants”).
AGREEMENT
NOW, THEREFORE, it is hereby agreed as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the following respective meanings:
| “Common Stock” shall mean shares of common stock, without
par value, of the Corporation.
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| “Commission” shall mean the Securities and Exchange
Commission.
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| “Holder” shall mean the holders of Registrable Securities
and any person holding such securities to whom the rights under this Agreement have been transferred in accordance with Section 2.8 hereof.
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| “Registrable Securities” means (i) all shares of the
Corporation’s Common Stock acquired upon exercise of the Series “T” Warrants (the “Shares”), and (ii) any Common Stock or other securities of the Corporation issued or issuable with respect to, or in exchange for or in
replacement of the Shares or such additional shares upon any stock split, stock dividend, recapitalization, or similar event; provided, however, that shares of Common Stock or other securities shall only be treated as Registrable Securities for the
purposes of Section 2 hereof if and so long as they have not been sold pursuant to Rule 144 under the Securities Act or pursuant to an effective Registration Statement under the Securities Act, or otherwise to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction.
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| The terms “register,” “registered” and
“registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.
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| “Registration Expenses” shall mean all expenses, except as
otherwise stated below, incurred by the Corporation in complying with Section 2 hereof, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the
Corporation and one special counsel to the selling Holders, blue sky fees and expenses, fees to Nasdaq to list the Shares or American Stock Transfer and Trust Company to issue the Shares, and the expense of any special audits incident to or required
by any such registration.
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| “Securities Act” shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
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| “Selling Expenses” shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities registered by the selling Holders and any other expenses that are not Registration Expenses and that are incurred by the selling Holders.
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2. Registration Rights
2.1 Company Registration
| (a) Notice of Registration.
If at any time or from time to time the Corporation shall determine to register any of its securities, either for its own account or the account of a security holder or holders, other than a registration relating solely to employee
benefit plans or a registration relating solely to a Commission Rule 145 transaction, the Corporation will:
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| (i) promptly give to each Holder written notice
thereof; and
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| (ii) subject to Section 2.1(b), include in such
registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests made within 20 days after receipt of such
written notice from the Corporation, by any Holder.
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| (b) Underwriting. If the
registration of which the Corporation gives notice is for a registered public offering involving an underwriting, the Corporation shall so advise the Holders as a part of the written notice given pursuant to Section 2.1(a) hereof. In such event the
right of any Holder to registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall (together with the Corporation) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Corporation.
Notwithstanding any other provision of this Section 2.1, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the Registrable Securities and
other securities to be distributed through such underwriting for the account of the requesting Holders (including persons other than Holders with registration rights relating to the Corporation’s Common Stock who have requested to participate
in the underwritten offering (“Other Holders”)) to 20% of the total number of shares to be distributed. The Corporation shall so advise all Holders distributing their securities through such underwriting of such limitations and the number
of shares of Registrable Securities, if any, that may be included in the registration (and underwriting, if any) shall be allocated among all Holders (including the Other Holders) in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities and securities held by the Other Holders requested by such persons to be included in such Registration Statement. To facilitate the allocation of shares in accordance with the above provisions, the Corporation may round the
number of shares allocated to any Holder or holder to the nearest 100 shares.
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| (c) Right to Terminate Registration.
The Corporation shall have the right to terminate or withdraw any registration initiated by it under this Section 2.1 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in
such registration. The Registration Expenses of such withdrawn registration shall be borne by the Corporation in accordance with Section 2.3 hereof.
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2.2 Demand Registration
| (a) Any Holder holding a majority of Registrable
Securities may request registration of such Registrable Securities. Upon receipt of such request (specifying that it is being made pursuant to this Section 2.2(a)), the Corporation shall use its best efforts to file within ninety (90) days of such
receipt a registration statement on Form S-3 for the resale of the Registrable Securities and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be
obligated to prepare, file and cause to be effective only one registration statement pursuant to this Section 2.2(a). The Corporation shall be obligated to prepare, file and cause to be effective only two registration statements pursuant to this
Section 2.2(a).
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| Upon the receipt of such request, the Corporation shall:
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| (i) promptly give to each remaining Holder written
notice that a registration is to be effected; and
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| (ii) include in such registration (and any related
qualification under blue sky laws or other compliance) all the Registrable Securities specified in a written request or requests made within 20 days after such written notice was sent by the Corporation, by any Holder.
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| Further, the Corporation shall use all reasonable efforts to cause such
registration to be a non-underwritten shelf registration pursuant to Rule 415 under the Securities Act and to cause such shelf registration to be maintained effective for at least two (2) years.
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| (b) Notwithstanding the foregoing, the Corporation
shall not be obligated to take any action pursuant to this Section 2.2: (i) in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such registration, qualification or
compliance unless the Corporation is already subject to service in such jurisdiction and except as may be required by the Securities Act; or (ii) if the Corporation shall furnish to the Holders a certificate signed by the Chairman or President of
the Corporation stating that the Corporation has reasonably determined that it should postpone for a specified period of time not to exceed 120 days in the case of clause (A) below, or 45 days in the case of clause (B) below (each, a “Blackout
Period”), any action pursuant to this Section, including, without limitation, the preparation and/or filing of a registration statement or prospectus or any amendments or supplements to any registration statement or prospectus, because any such
filing would (A) materially impede, delay or otherwise interfere with an offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Corporation, or (B) require disclosure of material information
(other than an event described in clause (A) above) which, if disclosed at that time, would be materially harmful to the interests of the Corporation and its shareholders. Upon delivery of such a certificate to the Holders by the Corporation, each
of the Holders covenants that he shall (X) keep the fact of the notice strictly confidential, (Y) promptly halt any offer, sale, trading or transfer by him and his affiliates of any Common Stock for the duration of the Blackout Period set forth in
the certificate or until the Blackout Period is earlier terminated by the Corporation and (Z) promptly halt any use or distribution of the registration statement and prospectus by him and his affiliates for the duration of the Blackout Period or
until such Blackout Period is earlier terminated by the Corporation. The Corporation shall not be entitled to deliver a certificate and impose a Blackout Period pursuant to Clause A more than once in any twelve month period.
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2.3 Expenses of Registration
| All Registration Expenses incurred in connection with registration pursuant
to Section 2.1 and the first registration pursuant to Section 2.2 shall be borne by the Corporation. All Registration Expenses incurred in connection with the second registration pursuant to Section 2.2 shall be borne by the Holder(s) participating
in such registration. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne by the Holders of securities included in such registration pro rata, severally and not jointly, among each other on the basis of the
number of shares so registered.
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2.4 Registration Procedures
| In the case of each registration effected by the Corporation pursuant to this
Section 2, the Corporation will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. At its expense the Corporation will:
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| (a) Prepare and file with the Commission a
registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for at least two (2) years or, if earlier, until the distribution described in the registration
statement has been completed;
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| (b) Prepare and file with the Commission during the
period specified in Section 2.4(a) such amendments and supplements to such registration statement and the prospectus used in connection with
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| such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
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| (c) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as the Holders and such underwriters may
reasonably request in order to facilitate the public offering of such securities;
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| (d) Furnish, at the request of any Holder requesting
registration of Registrable Securities at the time such securities are delivered to the underwriters (if any) for sale in connection with a registration pursuant to this Section 2, (i) an opinion, dated such date, of the counsel representing the
Corporation for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters and to the Holders requesting registration of Registrable Securities
and (ii) a letter dated the date of commencement of the offering and a “bring-down” letter dated as of the closing date of such offering, from the independent accountants of the Corporation, in form and substance as is customarily given by
independent accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities.
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2.5 Indemnification
| (a) The Corporation will indemnify each Holder and
each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration has been effected pursuant to this Section 2, and each underwriter, if any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Corporation of the Securities Act or any other applicable federal and state securities laws or any rules or regulations promulgated thereunder in connection with any such registration, qualification or
compliance, and the Corporation will reimburse each such Holder, each of its officers, directors, partners, and legal counsel and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that the Corporation will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Corporation by
such Holder, controlling person or underwriter and stated to be specifically for use therein.
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| (b) Each Holder will, if Registrable Securities held
by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Corporation, each of its directors and officers, each underwriter, if any, of the Corporation’s securities
covered by such a registration statement, each person who controls the Corporation or such underwriter within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers and directors, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the
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| Corporation, such Holders, and such directors, officers, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Corporation by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this subsection (b) shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the
shares sold by such Holder under such registration statement bears to the total public offering price of all securities sold thereunder, but not to exceed the proceeds received by such Holder from the sale of Registrable Securities covered by such
registration statement.
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| (c) Each party entitled to indemnification under this
Section 2.5 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2 unless the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend
such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or separate and different defenses but shall bear the expense of such defense nevertheless. Each
Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation
resulting therefrom. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, 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 to such claim or litigation. Notwithstanding the other provisions of this Agreement, no Indemnifying Party shall
be obligated to indemnify any Indemnified Party for amounts paid by the Indemnified Party in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnifying Party (which consent has
not been unreasonably withheld).
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| (d) If the indemnification provided for in paragraphs
(a) through (c) of this Section 2.5 is unavailable or insufficient to hold harmless an Indemnified Party under such paragraphs in respect of any losses, claims, damages, liabilities, expenses or actions in respect thereof referred to therein, then
each Indemnifying Party shall in lieu of indemnifying such Indemnified Party contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or actions in such proportion as appropriate to
reflect the relative fault of the Corporation, the underwriters, and the Holder of such Registrable Securities, respectively, in connection with the statements or omissions which resulted in such losses, claims, damage, liabilities, expenses or
actions in respect thereof as well as any other relevant equitable considerations, including the failure to give any notice under paragraph (c). The relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact relates to information supplied by the Corporation, on the one hand, or the underwriters or the Holders of such Registrable Securities, on the other, and to the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Corporation and each of the Holders agrees that it would not be just and equitable if contributions pursuant to this paragraph were determined by pro
rata allocation (even if all of the Holders of such Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which did not take account of the equitable considerations referred to above in this
paragraph. The amount paid or payable by an indemnified party as a
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| result of the losses, claims, damages, liabilities or action in respect thereof, referred to above in this paragraph, shall
be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this paragraph, no Holder shall be required to
contribute any amount in excess of the lesser of (i) the proportion that the public offering price of shares sold by such Holder under such registration statement bears to the total public offering price of all securities sold thereunder, but not to
exceed the proceeds received by such Holder for the sale of Registrable Securities covered by such registration statement and (ii) the amount of any damages which they would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act), shall be entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation.
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| (e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting agreement (if any) entered into in connection with an underwritten public offering of the Registrable Securities are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.
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2.6 Information by Holder
| The Holder or Holders of Registrable Securities included in any registration
shall furnish to the Corporation such information regarding such Holder or Holders, the Registrable Securities held by them and the distribution proposed by such Holder or Holders as the Corporation may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance referred to in this Section 2.
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2.7 Rule 144 Reporting
| With a view to making available the benefits of certain rules and regulations
of the Commission which may at any time permit the sale of the Registrable Securities to the public without registration, the Corporation agrees to use its best efforts to:
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| (a) At all times make and keep public information
available, as those terms are understood and defined in Rule 144 under the Securities Act;
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| (b) File with the Commission in a timely manner all
reports and other documents required of the Corporation under the Securities Act and the Securities Exchange Act of 1934, as amended;
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| (c) So long as a Holder owns any Registrable
Securities to furnish to the Holder forthwith upon request a written statement by the Corporation as to its compliance with the reporting requirements of said Rule 144, and of the Securities Act and the Securities Exchange Act of 1934, a copy of the
most recent annual or quarterly report of the Corporation, and such other reports and documents of the Corporation and other information in the possession of or reasonably obtainable by the Corporation as a Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing a Holder to sell any such securities without registration.
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2.8 Transfer of Registration Rights
| The rights to cause the Corporation to register securities granted to Holders
under this Section 2 may be assigned (a) to a transferee or assignee in connection with any transfer or assignment of Registrable Securities by a Holder of not less than 20,000 shares of Registrable Securities (as presently constituted and subject
to subsequent adjustments for stock splits, stock dividends, reverse stock splits, and the like), or (b) to the estate of a Holder, provided in each case that such transfer may otherwise be effected in accordance with applicable securities laws and
written notice of the transfer is given to the Corporation at the time of or within a reasonable time after such transfer or assignment, stating the name and address of
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| the transferee or assignee and identifying the Registrable Securities with respect to which such registration rights are
being transferred or assigned, and provided, further, that the transferee or assignee of such rights agrees in writing to be bound by the terms of this Agreement as if such transferee were a party hereto.
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2.9 Standoff Agreement
| Each Holder agrees, in connection with registered public offerings of the
Corporation’s securities for the account of the Corporation, upon request of the Corporation or the underwriters managing any underwritten offering of the Corporation’s securities, not to sell, make any short sale of or otherwise dispose
of any Registrable Securities (other than those included in the registration) without the prior written consent of the Corporation or such underwriters, as the case may be, for such period of time (not to exceed 120 days in the case of other public
offerings) from the effective date of such registration as may be requested by the underwriters, provided, that the officers and directors of the Corporation who own stock of the Corporation also agree to such restrictions.
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2.10 Termination of Registration Rights
| The rights granted under this Section 2 shall terminate one (1) year from the
later of the exercise in full or termination of the Warrants.
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2.11 Delay of Registration
| No Holder or Holders shall have any right to take any action to restrain,
enjoin, or otherwise delay any registration as a result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.
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2.12 Use of Form S-3
| With a view to maintaining its eligibility to use Form S-3, the Corporation
agrees to use its best efforts to file with the Commission in a timely manner (i) all the material required to be filed pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii) all reports and other documents
required to be filed by the Corporation under the Securities Act and the Securities Exchange Act of 1934, as amended; provided, however, that there can be no assurance that the Corporation will remain eligible for use of Form S-3 or that any Form
S-3 filed by the Corporation with respect to the Registrable Securities will be declared effective.
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3. Miscellaneous
3.1 Waivers and Amendments
| With the written consent of both the Corporation and Holders of a majority of
outstanding Registrable Securities originally acquired by Xxxxxxxxxx then held by Holders (voting together as a class), the obligations of the Corporation and the rights of such Holders of Registrable Securities under this Agreement may be waived
(either generally or in a particular instance, and either for a specified period of time or indefinitely), and with the same consent the Corporation, when authorized by resolution of its Board of Directors, may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement. Neither this Agreement nor any provisions hereof may be changed, waived, discharged or terminated orally, other than by a
signed statement in writing.
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3.2 Governing Law
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3.3 Successors and Assigns
| Except as otherwise expressly provided herein, the Provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
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3.4 Entire Agreement
| This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof.
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3.5 Notices
| All notices and other communications required or permitted hereunder shall be
effective upon receipt and shall be in writing and may be delivered in person, by telecopy, electronic mail, overnight delivery service or U.S. mail, in which event it may be mailed by first class, postage prepaid, addressed (a) if to Xxxxxxxxxx, at
the address set forth on the signature page hereto, or at such other address as the Holder shall have furnished to the Corporation, or (b) if to the Corporation, at 0000 XX Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx 00000, Attention: President, or at such
other address as shall have furnished to the Holders in writing. Notwithstanding the foregoing, all notices and communications to addresses outside the United States shall be given by telecopier and confirmed in writing sent by overnight or two-day
courier service.
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3.6 Titles and Subtitles
| The titles of the paragraphs and subparagraphs of this Agreement are for
convenience of reference only and are not to be considered in construing this Agreement.
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3.7 Litigation; Prevailing Party
| In the event of any litigation between the Corporation and Xxxxxxxxxx with
regard to this Agreement, the prevailing party shall be entitled to reimbursement from the nonprevailing party for all reasonable fees and expenses of counsel for the prevailing party.
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3.8 Nominees
| Securities registered in the name of a nominee for a Holder shall, for
purposes of this Agreement, be treated as being owned by such Holder.
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3.9 Counterparts
| This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument. Delivery of a signed counterpart by and between telephone facsimile transmission shall between effective as delivery of a manually signed counterpart of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date set forth
above.
| By:
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| Name: Xxxxx X. X’Xxxx
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| Title: President and CEO
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| X.X. XXXXXXXXXX & CO., INC.
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| By:
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| Name:
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| Title:
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| |
Address:
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Xxx Xxxxxx Xxxxx
Xxxxxx XX 00000
Attn: General Counsel
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| Telecopy: (000) 000-0000
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