EXHIBIT 4.8
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
this 12th day of March, 2003, by and between NOVATEL WIRELESS, INC., a Delaware
corporation (the "Company"), and the purchasers listed on the signature pages
hereto (the "Purchasers" and, collectively with the Company, the "Parties").
PRELIMINARY STATEMENTS
In connection with the consummation of the transactions contemplated by
that certain Securities Purchase Agreement (the "Purchase Agreement"), dated as
of March 12, 2003, between the Purchasers and the Company, the Company has
agreed to issue and sell to the Purchasers, (i) a secured convertible preferred
promissory note (the "Convertible Note"), convertible into shares of the Series
B Preferred Stock, which Series B Preferred Stock is convertible into shares of
Common Stock; (ii) additional shares of the Company's Series B Preferred Stock;
and (iii) certain warrants to purchase shares of the Company's Common Stock (the
"Warrants").
The obligations of the Purchasers to purchase the Convertible Note, the
Third Issuance Shares and the Warrants pursuant to the Purchase Agreement are
conditioned upon, among other things, the Parties' execution of this Agreement,
pursuant to which the Purchasers will be entitled to certain registration rights
with respect to the Common Stock issuable upon conversion of the Series B
Preferred Stock and the exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Certain Definitions.
1.1 Terms Defined in this Section. For purposes of this
Agreement, the following terms have the following meanings:
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banking institutions in New York, New York are required
or authorized by law to remain closed.
"Company Indemnified Parties" means the Company, its officers,
directors, employees, and agents, and each Person, if any, who controls the
Company within the meaning of either the Securities Act or the Exchange Act, and
the officers, directors, employees, and agents of the foregoing parties.
"Common Stock" means the Company's common stock, par value $0.001 per
share, and any securities into or for which such securities are converted or
exchanged by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Indemnified Party" means a Person claiming a right to indemnification
pursuant to Section 6 of this Agreement.
"Indemnifying Party" means a Person required to provide indemnification
pursuant to Section 6 of this Agreement.
"Losses" means any losses, claims, damages, or liabilities, and any
related legal or other fees and expenses.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, trust,
association, organization, or other entity.
"Prospectus" means the prospectus included in a Registration Statement
as of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, each as amended, and
each applicable prospectus supplement relating to the offering and sale of any
of the Registrable Securities pursuant to such Registration Statement.
"Registrable Securities" means:
(i) Common Stock issued or issuable upon the conversion
of the Series B Preferred Stock (including the Series B Preferred Stock issued
upon conversion of the Convertible Note); or
(ii) Common Stock issued or issuable upon the exercise of
the Warrants.
Securities that are Registrable Securities will cease to be Registrable
Securities:
(i) when a registration statement with respect to the
sale of such securities has become effective under the Securities Act and such
securities have been disposed of in accordance with such registration statement,
(ii) when such securities shall have been sold pursuant to
Rule 144 or Rule 145 (or any successor provisions) under the Securities Act or
in any other transaction in which the applicable purchaser does not receive
"restricted securities" (as that term is defined for purposes of Rule 144 under
the Securities Act), or
(iii) when such securities cease to be outstanding.
"Registration Statement" means a registration statement (including the
related Prospectus) of the Company under the Securities Act on any form selected
by the Company for which the Company then qualifies and which permits the sale
thereunder of the number and type of Registrable Securities (and any other
securities of the Company) to be included therein in accordance with this
Agreement by the applicable sellers in the manner described therein. The term
"Registration Statement" shall also include all exhibits, financial statements,
and schedules and all documents incorporated by reference in such Registration
Statement when it becomes
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effective under the Securities Act, and in the case of the references to the
Registration Statement as of a date subsequent to the effective date, as amended
or supplemented as of such date.
"SEC" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Selling Stockholder" means any Stockholder whose Registrable
Securities are included at the request of such Stockholder in any Registration
Statement pursuant to Section 2 or Section 3.
"Series B Preferred Stock" means the Company's Series B Convertible
Preferred Stock, par value $0.001 per share.
"Stockholder" means each Purchaser who has the right to acquire
Registrable Securities and any other Person:
(i) to whom any Registrable Securities or any rights to
acquire any Registrable Securities are transferred by any Person that was,
immediately prior to such transfer, a Stockholder,
(ii) who continues to hold such Registrable Securities or
the right to acquire such Registrable Securities,
(iii) to whom the transferring Stockholder has assigned any
of its rights under this Agreement, in whole or in part, in accordance with the
provisions of Section 8.6 of this Agreement with respect to such Registrable
Securities, and
(iv) who has executed a counterpart hereof in connection
with the transfer of such Registrable Securities.
"Stockholder Indemnified Parties" means each Selling Stockholder, its
officers, directors, employees, and agents, each Person (if any) who controls
such Selling Stockholder within the meaning of either the Securities Act or the
Exchange Act, and the officers, directors, employees, and agents of the
foregoing parties.
"Third-Party Demand Stockholder" means any Person having the right to
require that the Company effect a registration under the Securities Act of
securities owned by such Person, other than pursuant to this Agreement.
1.2 Terms Defined Elsewhere in this Agreement. For
purposes of this Agreement, the following terms have the meanings set forth in
the sections indicated:
Term Section
---- -------
Demand Notice Section 2.2(a)
Demand Registration Section 2.1
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Term Section
---- -------
Demanding Stockholders Section 2.2(a)
Incidental Registration Section 3.1(a)
Initiating Stockholder Section 2.2(a)
Material Event Section 2.6(a)
Minimum Condition Section 2.2(d)
Registration Expenses Section 5.1
1.3 Terms Generally. The definitions in this Agreement
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context requires, any pronoun includes the corresponding
masculine, feminine, and neuter forms. The words "include," "includes," and
"including" are not limiting. Any reference in this Agreement to a "day" or
number of "days" (without the explicit qualification of "Business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day,
and such calendar day is not a Business Day, then such action or notice shall
be deferred until, or may be taken or given on, the next Business Day.
2. Demand Registration.
2.1 Demand Registration Rights. Each Stockholder shall
have the right to require that the Company register under the Securities Act the
offer or sale of all or a portion of the Registrable Securities held by such
Stockholder on the terms and subject to the conditions and limitations set forth
herein. The registration of Registrable Securities under the Securities Act in
accordance with this Section 2 is referred to in this Agreement as a "Demand
Registration." The Stockholders shall be entitled to four Demand Registrations
in the aggregate.
2.2 Procedures for Demand Registrations.
(a) A Stockholder holding Registrable Securities
may elect to initiate a Demand Registration pursuant to this Section 2 by
furnishing the Company with a written notice (the "Demand Notice") specifying
the number of Registrable Securities that such Stockholder desires to have
registered, and such Stockholder's intended method or methods of distribution of
all such Registrable Securities. The Stockholder delivering a notice pursuant to
the preceding sentence is referred to as the "Initiating Stockholder." Within
twenty (20) days of its receipt of the Demand Notice, the Company shall notify
the Stockholders of its receipt of a Demand Notice. Each Stockholder may, within
thirty (30) days of the Company's receipt of the Demand Notice, deliver a
written notice to the Company specifying the number of shares that such
Stockholder (each, together with the Initiating Stockholder, a "Demanding
Stockholder") wishes to have registered, and such Stockholder's intended method
or methods of distribution of such securities. If Stockholders holding
Registrable Securities representing a majority of the outstanding Registrable
Securities provide the Company with written notice that they desire that such
Demand Registration not take place, the Company shall not be required to proceed
with such Demand Registration and, irrespective of whether the Company proceeds
with such registration, such registration shall not be deemed to have been a
Demand Registration for purposes of the limitations on the number of Demand
Registrations set forth in Section 2.1.
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(b) If the number of Registrable Securities that
the Demanding Stockholders desire to have registered (as specified in their
notices pursuant to Section 2.2(a)) does not satisfy the Minimum Condition (as
set forth in Section 2.2(d), below), then the Company will have no obligation to
effect a Demand Registration in response to such notices pursuant to Section
2.2(a) (except as otherwise required in Section 2.4), but nothing herein will
limit the rights of the Stockholders to require on a subsequent occasion that
the Company effect a Demand Registration to which the Stockholders are entitled
under Section 2.1.
(c) On the thirty-first (31st) day following its
receipt of a Demand Notice, the Company will notify each Demanding Stockholder
whether the number of Registrable Securities that the Stockholders desire to
have registered (as specified in their notices pursuant to Section 2.2(a))
satisfies the Minimum Condition.
(d) The "Minimum Condition" means that the
number of Registrable Securities that the Stockholders desire to have registered
(as specified in their notices pursuant to Section 2.2(a)) have an aggregate
market value on the date of the delivery of the Initiating Stockholder's notice
pursuant to Section 2.2(a) (before any underwriting or brokerage discounts and
commissions) of not less than seven hundred and fifty thousand dollars
($750,000); or
(e) Following the effectiveness of a
Registration Statement filed in connection with a Demand Registration, the
Company will not be required to file a Registration Statement for a subsequent
Demand Registration within four months after the date on which it received the
Initiating Stockholder's notice pursuant to Section 2.2(a) for the immediately
preceding Demand Registration.
(f) As soon as reasonably practicable after the
Stockholders have notified the Company that they desire to have registered a
number of Registrable Securities that satisfies the Minimum Condition, subject
to Section 2.6(a) and Section 2.6(e), the Company will file with the SEC and use
its reasonable best efforts to cause to become effective as promptly as
practicable thereafter a Registration Statement that covers the Registrable
Securities requested to be registered in the manner set forth above. Subject to
the provisions of Section 2.3 below, each Registration Statement may also
include securities to be sold for the account of the Company, for Stockholders
who do not participate as Demanding Stockholders but who exercise their rights
under Section 3 below, or for any stockholder of the Company not holding
Registrable Securities.
2.3 Underwriters. One or more Demanding Stockholders
owning more than 50% of the Registrable Securities to be included in a Demand
Registration shall collectively have the right to select the lead book running
managing underwriter for any underwritten public offering in connection with a
Demand Registration, which lead managing underwriter shall be reasonably
acceptable to the Company. Each Demanding Stockholder electing to participate in
a Demand Registration involving an underwritten public offering shall, as a
condition to the Company's obligation under this Section 2 to include such
Demanding Stockholder's Registrable Securities in the Demand Registration, enter
into and perform its obligations under an underwriting agreement or other
similar arrangement in customary form with the lead underwriter of such
offering.
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2.4 Shelf Registration. One or more Demanding
Stockholders owning more than 50% of the Registrable Securities may elect to
require that a Demand Registration be effected pursuant to a shelf registration
under Rule 415 of the Securities Act; provided, however, that (a)
notwithstanding any thing to the contrary herein, the Minimum Condition shall
not apply; (b) the Company shall cause a registration statement with respect to
the first such shelf registration to be filed within the (10) days following the
Third Closing, (as defined in the Purchase Agreement); (c) during the time any
such shelf registration is effective, the Company may require from time to time
that the Selling Stockholders refrain from selling pursuant to such registration
under the circumstances, in the manner, and for the time period described in
Section 2.6; and (d) the Company will not be required under this Section 2.4 to
effect more than two Demand Registrations as a shelf registration under Rule 415
of the Securities Act. The Company will use its reasonable best efforts to cause
any Demand Registration effected as a shelf registration under Rule 415 of the
Securities Act to remain effective for a period ending on the earlier of (i) the
date that is a number of days after the effective date of the Registration
Statement equal to 730 plus the number of days that the Selling Stockholders
must refrain from selling pursuant to Section 2.6, and (ii) the date on which
all Registrable Securities covered by the Registration Statement have been sold
pursuant to the Demand Registration.
2.5 Limitation on Inclusion of Registrable Securities.
(a) If the book running managing underwriter of
any underwritten public offering in connection with a Demand Registration
determines in good faith that the aggregate number of Registrable Securities to
be offered exceeds the number of shares that could be sold without having an
adverse effect on such offering (including the price at which the Registrable
Securities may be sold), then the number of Registrable Securities to be offered
for the accounts of the Demanding Stockholders in such offering shall be reduced
or limited, on a pro rata basis, based on the respective numbers of Registrable
Securities requested to be included in such offering by all Demanding
Stockholders, to the extent necessary to reduce the total number of shares to be
included in such offering to the amount recommended by the book running managing
underwriter; provided, however, that if such registration includes securities
other than Registrable Securities of the Demanding Stockholders (whether for the
account of the Company or for any stockholder of the Company not exercising
rights under this Section 2), such reduction shall be made:
(i) first, from securities held by Persons who
are not Stockholders and from securities being offered for the account of the
Company, allocated between the Company and such other Persons as the Company may
determine, subject to any agreements between the Company and such other Persons
as in effect as of the date hereof;
(ii) second, from the number of Registrable
Securities requested to be included in such offering by Stockholders pursuant to
their rights under Section 3, on a pro rata basis, based on the number of
Registrable Securities requested to be included in the registration by
Stockholders pursuant to their rights under Section 3; and
(iii) last, from the number of Registrable
Securities requested to be included in such offering by the Demanding
Stockholders, on a pro rata basis, based on the
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number of Registrable Securities requested to be included in the registration by
the Demanding Stockholders.
(b) One or more Demanding Stockholders owning
more than 50% of the Registrable Securities to be included in a requested Demand
Registration may elect not to proceed with the registration if less than 75% of
the Registrable Securities requested to be registered by each of the Demanding
Stockholders are included in such registration. If Demanding Stockholders owning
more than 50% of the Registrable Securities to be included in a requested Demand
Registration elect not to proceed with the registration pursuant to this Section
2.5(b), the Registration Statement for such registration shall be promptly
withdrawn, a Demand Registration shall not be deemed to have been effected for
purposes of this Agreement (including the limitations on the number of Demand
Registrations set forth in Section 2.1 above) and the Company shall bear the
Registration Expenses in connection with such Registration Statement.
2.6 Delay of Filing or Sales.
(a) The Company shall have the right,
exercisable by giving notice of the exercise of such right to the applicable
Selling Stockholders, subject to Section 2.6(b), at any time and from time to
time, to delay filing or the declaration of effectiveness of a Registration
Statement or to require the applicable Selling Stockholders not to sell any
Registrable Securities pursuant to an effective Registration Statement for a
period not in excess of 120 days beginning on the date on which such notice is
given, or such shorter period of time as may be specified in such notice or in a
subsequent notice delivered by the Company to such effect prior to or during the
effectiveness of the Registration Statement, if:
(i) the Company is engaged in
discussions or negotiations with respect to, or there otherwise is pending, any
merger, acquisition, or other form of business combination that is "probable"
(within the meaning of the Securities Act), any divestiture, tender offer,
financing, or other event that, in any such case, is material to the Company
(any such activity or event, a "Material Event"),
(ii) such Material Event would, in the
judgment of the Company's board of directors (after consultation with counsel),
require disclosure so as to permit the Registrable Securities to be sold in
compliance with law, and
(iii) disclosure of such Material Event
would, in the judgment of the Company's board of directors (after consultation
with counsel), be adverse to its interests.
(b) the Company may not delay the filing of a
Registration Statement or the sale of any Registrable Securities, whether
pursuant to one or more notices pursuant to Section 2.6(a), for more than an
aggregate of 120 days within any 12-month period.
(c) If the Company postpones its obligations
under this Agreement by reason of a Material Event as described in Section
2.6(a), any Selling Stockholder will have the right to withdraw its Registrable
Securities from the applicable Demand Registration or Incidental Registration,
by giving notice to the Company at any time following delivery of the Company's
notice pursuant to Section 2.6(a).
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(d) No Stockholder may deliver a notice pursuant
to the first sentence of Section 2.2(a) during the period of any postponement
pursuant to Section 2.6(a) until the Company notifies all Stockholders of the
end of such Material Event or the expiration of the 120-day period described in
Section 2.6(a).
(e) The Company shall have the right,
exercisable by giving notice of the exercise of such right to the applicable
Selling Stockholders, to delay filing or the declaration of effectiveness of a
Registration Statement during any period in which, as a result of the Company's
failure to satisfy the conditions in Rule 3-01(c) of Regulation S-X, the Company
is required to include in the Registration Statement audited financial
statements of the Company prior to the date on which such audited financial
statements would normally have been prepared in accordance with the Company's
past practices and the SEC's periodic reporting requirements.
2.7 Withdrawal.
(a) If (i) a Registration Statement filed
pursuant to this Section 2 does not remain effective under the Securities Act
for the period specified in Section 2.8(a) due to a stop order, injunction, or
other order of the SEC or other governmental agency, and (ii) each of the
Demanding Stockholders has not sold at least two-thirds of its Registrable
Securities registered under such Registration Statement, then the Demanding
Stockholders may elect to withdraw such Registration Statement by written notice
to the Company; and, in such an event, such registration shall not be deemed to
have been a Demand Registration for purposes of the limitations on the number of
Demand Registrations contained in Section 2.1.
(b) Each Selling Stockholder may, no less than
five (5) Business Days before any Registration Statement becomes effective,
withdraw some or all of its Registrable Securities from inclusion in the
Registration Statement. If such withdrawals result in the Minimum Condition not
being satisfied, then the Company may withdraw such Registration Statement
unless the remaining Demanding Stockholders agree to include additional
Registrable Securities in the registration such that the Minimum Condition would
be satisfied or agree to bear the Registration Expenses incurred by the Company
in connection with such registration.
(c) If the Company withdraws a Registration
Statement pursuant to Section 2.7(b), then the requested registration shall be
deemed to have been a Demand Registration for purposes of the limitations on the
number of Demand Registrations contained in Section 2.1 unless
(i) at the time of a Stockholder's
withdrawal of Registrable Securities pursuant to Section 2.7(b), there has been
a material adverse change in the operating results, financial condition, or
business of the Company that was not publicly known at the time that the Minimum
Condition was originally satisfied; or
(ii) The Company has postponed its
obligations under this Agreement by reason of a Material Event as described in
Section 2.6(a).
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2.8 Effectiveness of Registration Statement.
(a) In connection with any Demand Registration
pursuant to this Section 2, subject to Section 2.6, the Company will use its
reasonable best efforts to prepare and file with the SEC any amendments and
supplements to the Registration Statement and the Prospectus used in connection
therewith, and to take any other actions, that may be necessary to keep the
Registration Statement and the Prospectus effective, current, and in compliance
with the provisions of the Securities Act, until the sooner to occur of (i) the
sale of all of the Registrable Securities covered by such Registration Statement
in accordance with the intended methods of distribution thereof or (ii) the 90th
day following the effective date of such Registration Statement.
(b) A Demand Registration shall not be deemed to
have been effected for purposes of this Agreement (including the limitations on
the number of Demand Registrations set forth in Section 2.1 above) until the
Registration Statement therefor shall have been declared effective under the
Securities Act by the SEC (and is not then subject to any stop order,
injunction, or other order or requirement of the SEC or other governmental
agency or court for any reason) for the period specified in Section 2.8.
3. Incidental Registration.
3.1 Notice of Incidental Registration.
(a) Subject to Section 3.1(b) and Section
3.1(c), if the Company at any time proposes to register under the Securities Act
any shares of the same class as any of the Registrable Securities (whether in an
underwritten public offering or otherwise and whether or not for the account of
the Company or for any stockholder of the Company, including Selling
Stockholders registering Registrable Shares in a Demand Registration pursuant to
Section 2), in a manner that would permit the registration under the Securities
Act of Registrable Securities for sale to the public, the Company will give
written notice to each Stockholder of its intention to do so not later than ten
(10) days prior to the anticipated filing date of the applicable Registration
Statement. If the proposed registration is intended to be a Demand Registration,
the Company shall give the notice described in the preceding sentence but only
to the Stockholders that did not previously elect to become Demanding
Stockholders pursuant to Section 2 with respect to such registration. Any
Stockholder may elect to participate in such registration on the same basis as
the planned method of distribution contemplated by the proposed registration by
delivering written notice of its election to the Company within five (5) days
after its receipt of the Company's notice pursuant to this Section 3.1(a). A
Stockholder's election pursuant to this Section 3.1(a) must (i) specify the
amount of Registrable Securities desired to be included in such registration by
such Stockholder and (ii) include any other information that the Company
reasonably requests be included in such registration statement. Upon its receipt
of a Stockholder's election pursuant to this Section 3.1(a), the Company will,
subject to Section 3.2, use its reasonable best efforts to include in such
registration all Registrable Securities requested to be included. Any
registration of Registrable Securities pursuant to this Section 3 is referred to
as an "Incidental Registration."
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(b) The Company shall have no obligation under
this Section 3 with respect to any registration effected pursuant to a
registration statement on Form S-4 (or any other registration statement
registering shares issued in a merger, consolidation, acquisition, or similar
transaction) or Form S-8 or any successor or comparable forms, or a registration
statement filed in connection with an exchange offer or any offering of
securities solely to the Company's existing stockholders or otherwise pursuant
to a dividend reinvestment plan, stock purchase plan, or other employee benefit
plan.
(c) The Company shall have no obligation under
this Section 3 with respect to any registration initiated by one or more
Third-Party Demand Stockholders pursuant to one or more registration rights
agreements in existence as of the date hereof under which the rights of all of
such Third-Party Demand Stockholders are pari passu, if:
(i) the applicable registration rights
agreement between the Company and such Third-Party Demand Stockholders prohibits
the inclusion in such registration of securities other than those offered by
such Third-Party Demand Stockholders and the Company; and
(ii) no securities other than those
offered by such Third-Party Demand Stockholders are included in such
registration.
3.2 Limitation on Inclusion of Registrable Securities;
Priorities. If the proposed method of distribution in connection with an
Incidental Registration is an underwritten public offering and the lead managing
underwriter thereof determines in good faith that the amount of securities to be
included in such offering would adversely affect such offering (including an
adverse effect on the price at which the securities proposed to be registered
may be sold), the amount of securities to be offered may be reduced or limited
to the extent necessary to reduce the total number of securities to be included
in such offering to the amount recommended by the lead managing underwriter as
follows (subject to any existing agreements as in effect on the date hereof):
(a) in connection with an offering initiated by
the Company, if securities are being offered for the account of other Persons
(including any Stockholders) such reduction shall be made:
(i) first, from the securities intended
to be offered by such other Persons (including any Stockholders), on a pro rata
basis, based on the number of Registrable Securities and other securities that
are requested to be included in such offering; and
(ii) last, from the number of securities
to be offered for the account of the Company;
(b) in connection with an offering initiated by
a Third-Party Demand Stockholder, such reduction shall be made:
(i) first, from securities held by
Persons who are not Stockholders, Third-Party Demand Stockholders, or other
stockholders entitled under any agreements between them and the Company to
participate pari passu with the Selling
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Stockholders in such Incidental Registration, and from securities being offered
for the account of the Company, allocated between the Company and such other
Persons as the Company may determine, subject to any agreements between the
Company and such other Persons;
(ii) second, from the number of
Registrable Securities requested to be included in such offering by the Selling
Stockholders and any other stockholders entitled under any agreements between
them and the Company to participate pari passu with the Selling Stockholders in
such Incidental Registration, on a pro rata basis, based on the number of
Registrable Securities and other securities which are requested to be included
in the registration; and
(iii) last, from securities being offered
by the Third-Party Demand Stockholders.
3.3 Delay or Withdrawal of Registration. The Company may,
without the consent of any Stockholder, delay, suspend, abandon, or withdraw any
proposed registration in which any Stockholder has requested inclusion of such
Stockholder's Registrable Securities pursuant to this Section 3.
3.4 Withdrawal by Selling Stockholder. Each Selling
Stockholder may, no less than five (5) Business Days before the anticipated
effective date of the applicable Registration Statement for an Incidental
Registration, withdraw some or all of its Registrable Securities from inclusion
in the Registration Statement.
3.5 Underwriters; Underwriting Agreement. In connection
with any Incidental Registration involving an underwritten public offering of
securities for the account of the Company or a Third-Party Demand Stockholder,
(a) the managing and lead underwriters shall be selected by the Company, unless
otherwise provided in any agreement between the Company and any Third-Party
Demand Stockholder, and (b) each Selling Stockholder electing to participate in
the Incidental Registration shall, as a condition to the Company's obligation
under this Section 3 to include such Selling Stockholder's Registrable
Securities in such Incidental Registration, enter into and perform its
obligations under an underwriting agreement or other similar arrangement in
customary form with the managing underwriter of such offering.
4. Obligations with Respect to Registration.
4.1 Obligations of the Company. Whenever the Company is
obligated by the provisions of this Agreement to effect the registration of any
Registrable Securities under the Securities Act, the Company shall:
(a) Subject to the provisions of Section 4.2,
use its reasonable best efforts to cause the applicable Registration Statement
to become effective as promptly as practicable, and to prepare and file with the
SEC any amendments and supplements to the Registration Statement and to the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement and the Prospectus effective, current, and in compliance
with the provisions of the Securities Act, during the periods when the Company
is required by this Agreement to keep the Registration Statement effective and
current.
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(b) Within a reasonable time not to exceed ten
(10) Business Days prior to filing a Registration Statement or Prospectus or any
amendment or supplement thereto (other than any amendment or supplement in the
form of a filing that the Company makes pursuant to the Exchange Act), furnish
to each Selling Stockholder and each underwriter, if any, of the Registrable
Securities covered by such Registration Statement copies of such Registration
Statement or Prospectus as proposed to be filed, which documents will be subject
to the reasonable review and comments of the Selling Stockholders (and their
respective counsel) during such period, and the Company will not file any
Registration Statement or any Prospectus or any amendment or supplement thereto
containing any statements with respect to any Selling Stockholder or the
distribution of the Registrable Securities to be included in such Registration
Statement for sale by such Selling Stockholder if such Selling Stockholder
reasonably objects in writing. Thereafter, the Company will furnish to each
Selling Stockholder and each underwriter, if any, such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such other documents as
such Selling Stockholder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Selling
Stockholder.
(c) After the filing of the Registration
Statement, promptly notify each Selling Stockholder of the effectiveness thereof
and of any stop order issued or threatened by the SEC and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered and promptly notify each Selling Stockholder of the lifting or
withdrawal of any such order.
(d) Immediately notify each Selling Stockholder
holding Registrable Securities covered by the applicable Registration Statement
at any time when a Prospectus relating thereto is required to be delivered under
the Securities Act, of (i) the determination that a Material Event exists or
(ii) the occurrence of an event requiring the preparation of a supplement or
amendment to such Prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading and promptly make
available to such Selling Stockholder any such supplement or amendment, and
subject to the provisions of this Agreement regarding the existence of a
Material Event, the Company will promptly prepare and furnish to each such
Selling Stockholder a supplement to or an amendment of such Prospectus so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(e) Enter into customary agreements (including
an underwriting agreement in customary form including customary indemnification
provisions) and perform its obligations under any such agreements and shall take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities.
(f) Make available for inspection by any Selling
Stockholder covered by such Registration Statement, any underwriter selected by
a Selling Stockholder pursuant to
- 12 -
Section 2.3 participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant, or other professional retained by any
such Selling Stockholder or underwriter, all financial and other records,
pertinent corporate documents, and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection therewith, and cause the Company's officers,
directors, and employees to supply all information reasonably requested by any
of such Persons in connection with such Registration Statement. Information that
the Company determines, in good faith, to be confidential and notifies such
Persons is confidential shall not be disclosed by such Persons unless (i) the
release of such information is ordered pursuant to a subpoena or other order
from a court, or other governmental agency or tribunal, of competent
jurisdiction or (ii) such information becomes public other than through a breach
by such Persons of the confidentiality obligations of such Persons. Each Selling
Stockholder agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any transactions in the securities of the Company or for any other
purpose unless and until such information is made generally available to the
public.
(g) Furnish, in the case of an underwritten
public offering, to each Selling Stockholder and to each underwriter a signed
counterpart of (i) an opinion or opinions of in-house counsel or outside counsel
to the Company addressed to such Selling Stockholder and underwriters (on which
opinion both such Selling Stockholder and each such underwriter shall be
entitled to rely) and (ii) a comfort letter or comfort letters from the
Company's independent public accountants, each in customary form and covering
such matters of the type customarily covered by opinions or comfort letters, as
the case may be, as the holders of a majority of the Registrable Securities
included in such Registration Statement or the managing underwriter therefor
reasonably requests.
(h) Register or qualify the Registrable
Securities covered by a Registration Statement under the securities or blue sky
laws of such United States jurisdictions as the Selling Stockholders shall
reasonably request, and do any and all other acts and things which may be
necessary to enable each Selling Stockholder to consummate the disposition in
such jurisdictions of such Registrable Securities in accordance with the method
of distribution described in such Registration Statement; provided, however,
that the Company shall not be required (i) to qualify to do business as a
foreign corporation in any jurisdiction where it is not otherwise required to be
so qualified, (ii) to conform its capitalization or the composition of its
assets at the time to the securities or blue sky laws of such jurisdiction,
(iii) to execute or file any general consent to service of process under the
laws of any jurisdiction, or (iv) to subject itself to taxation in any
jurisdiction where it has not theretofore done so.
(i) Use its reasonable best efforts to cause
such Registrable Securities covered by a Registration Statement to be listed on
the principal exchange or exchanges or qualified for trading on the principal
over-the-counter market or listed on the automated quotation market on which
securities of the same class and series as the Registrable Securities (or into
which such Registrable Securities will be or have been converted) are then
listed, traded, or quoted upon the sale of such Registrable Securities pursuant
to such Registration Statement.
(j) Make and keep information publicly available
relating to the Company so as to satisfy the requirements of Rule 144 under the
Securities Act (or any successor
- 13 -
or corresponding rule) and file with the SEC all reports and other documents
required of the Company under the Securities Act and the Exchange Act in a
timely manner.
(k) Make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act (provided
that the Company shall not be deemed in violation of this paragraph so long as
it files customary quarterly reports with the SEC for such period), and not file
any amendment or supplement to such Registration Statement or Prospectus to
which any of the Selling Stockholders shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act.
4.2 Selling Stockholders' Obligations. The Company's
obligations under this Agreement to a Selling Stockholder shall be conditioned
upon such Selling Stockholder's compliance with the following:
(a) Such Selling Stockholder shall cooperate
with the Company in connection with the preparation of the Registration
Statement, and for so long as the Company is obligated to keep the Registration
Statement effective, such Selling Stockholder will provide to the Company, in
writing, for use in the Registration Statement, all information regarding such
Selling Stockholder, its intended method of disposition of the applicable
Registrable Securities, and such other information as the Company may reasonably
request to prepare the Registration Statement and Prospectus covering the
Registrable Securities and to maintain the currency and effectiveness thereof.
(b) Such Selling Stockholder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 4.1(d), such Selling Stockholder will discontinue its
offering and sale of Registrable Securities pursuant to the applicable
Registration Statement until such Selling Stockholder's receipt of either (i)
notice from the Company that a Material Event no longer exists (but for no
longer than the end of the 120-day period described in Section 2.6) or (ii) the
copies of the supplemented or amended Prospectus contemplated by Section 4.1(d),
and, in either case, if so directed by the Company, such Stockholder will
deliver to the Company all copies in its possession of the most recent
Prospectus covering such Registrable Securities at the time of receipt of such
notice.
4.3 Underwriting Agreement. Neither the Company nor any
other Person may participate in any underwritten public offering in connection
with a Demand Registration or an Incidental Registration unless such Person (i)
agrees to sell its securities on the basis provided in any underwriting
arrangements approved by the Person or Persons selecting the lead managing
underwriters for such offering and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement.
4.4 Holdback by the Company. The Company agrees not to
engage in any public sale or distribution by it of any securities of the same
class or series as the Registrable Securities or securities convertible into, or
exchangeable or exercisable for, or the value of which relates to or is based
upon, such securities during the ten days prior to, and during the 45-day
- 14 -
period beginning on, the effective date of any Registration Statement filed with
respect to any public offering of Registrable Securities to the extent the lead
book running managing underwriter for such offering advises the Company in
writing that a public sale or distribution during such 45-day period (including
a sale pursuant to Rule 144 under the Securities Act) of Registrable Securities
by the Company other than pursuant to the underwritten public offering
contemplated by such registration statement would materially adversely impact
such underwritten public offering), except as part of such registration;
provided, however, that the limitation set forth in this Section 4.4 shall not
apply: (a) to registrations by the Company on Form S-4 or any other registration
of shares issued in a merger, consolidation, acquisition, or similar transaction
or on Form S-8, or any successor or comparable forms, or a registration
statement filed in connection with an exchange offer of securities of the
Company made solely to the Company's existing stockholders or otherwise pursuant
to a dividend reinvestment plan, stock purchase plan, or other employee benefit
plan; (b) to sales by the Company upon exercise or exchange, by the holder
thereof, of options, warrants or convertible securities; (c) to any employee
benefit plan (if necessary to allow such plan to fulfill its funding obligations
in the ordinary course); or (d) to any Demand Registration effected as a shelf
registration under Rule 415 of the Securities Act. This Section 4.4 shall not
limit any public sale or distribution of any securities of the Company by any
Third-Party Demand Stockholder or any Person having the right to require that
the Company include its securities in any registration initiated by any
Third-Party Demand Stockholder.
4.5 Holdback by Stockholders. To the extent not
inconsistent with applicable law, each Stockholder whose securities are included
in a Registration Statement in connection with an underwritten public offering
agrees not to effect any sale or distribution of the issue being registered or a
similar security of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act, during the ten days prior to, and during the
45-day period beginning on, the effective date of such Registration Statement
(except as part of such registration), if and to the extent requested in writing
by the managing underwriter or Underwriters of such underwritten public
offering.
5. Expenses of Registration.
5.1 Registration Expenses. Except as provided in Section
5.2, all Registration Expenses incurred in connection with any Demand
Registration or Incidental Registration and the distribution of any Registrable
Securities in connection therewith shall be borne by the Company. For purposes
of this Agreement, the term "Registration Expenses" means all:
(a) registration, application, filing, listing,
transfer, and registrar fees,
(b) NASD fees and fees and expenses of
registration or qualification of Registrable Securities under state securities
or blue sky laws,
(c) printing expenses (or comparable duplication
expenses), delivery charges, and escrow fees,
(d) fees and disbursements of counsel for the
Company,
- 15 -
(e) fees and expenses for independent certified
public accountants retained by the Company (including the expenses of any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters),
(f) fees and expenses of any special experts
retained by the Company in connection with such registration;
(g) reasonable fees and disbursements of
underwriters and broker-dealers customarily paid by issuers or sellers of
securities,
(h) fees and expenses of listing the Registrable
Securities on a securities exchange or over-the-counter market; and
(i) all reasonable fees and disbursements of one
(1) counsel for the Selling Stockholders attributable to the distribution of the
Registrable Securities of such Selling Stockholders included in such
registration.
5.2 Selling Stockholder Expenses. Each Selling
Stockholder shall pay all:
(a) stock transfer fees or expenses (including
the cost of all transfer tax stamps), if any; and
(b) all underwriting or brokerage discounts and
commissions.
6. Indemnification.
6.1 By the Company. The Company agrees to indemnify and
hold harmless each Stockholder Indemnified Party from and against any Losses,
joint or several, to which such Stockholder Indemnified Party may become subject
under the Securities Act, the Exchange Act, state securities or blue sky laws,
common law or otherwise, insofar as such Losses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the applicable Registration Statement or
Prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and the
Company will reimburse each such Stockholder Indemnified Party for any
reasonable fees and expenses of outside legal counsel for such Stockholder
Indemnified Parties, or other expenses reasonably incurred by them, as incurred,
in connection with investigating or defending any such claims; provided,
however, that the Company will not indemnify or hold harmless any Stockholder
Indemnified Party from or against any such Losses (including any related
expenses) to the extent such Losses (including any related expenses) result from
an untrue statement, omission or allegation thereof which were (a) made in
reliance upon and in conformity with written information provided by or on
behalf of the applicable Selling Stockholder specifically and expressly for use
or inclusion in the applicable Registration Statement or Prospectus or (b) made
in any Prospectus used after such time as the Company advised such Selling
Stockholder that the filing of a post-effective amendment or supplement thereto
was required, except that this proviso shall not apply if the untrue statement,
omission, or allegation thereof is contained in the Prospectus as so amended or
supplemented. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on
- 16 -
behalf of the Stockholder Indemnified Parties and shall survive the transfer of
such securities by the Selling Stockholders.
6.2 By Selling Stockholders. Each Selling Stockholder,
individually and not jointly, agrees to indemnify and hold harmless each Company
Indemnified Party and each other Stockholder Indemnified Party from and against
any Losses, joint or several, to which such Company Indemnified Party or any
other Stockholder Indemnified Party may become subject, insofar as such Losses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
applicable Registration Statement or the Prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, if the statement or omission was made in
reliance upon and in conformity with written information provided by or on
behalf of such Selling Stockholder or any Person who controls such Selling
Stockholder specifically and expressly for use or inclusion in the applicable
Registration Statement or Prospectus; provided, however, that such Selling
Stockholder will not indemnify or hold harmless any Company Indemnified Party or
other Stockholder Indemnified Party from or against any such Losses (including
any related expenses) (a) to the extent the untrue statement, omission, or
allegation thereof upon which such Losses (including any related expenses) are
based was made in any Prospectus used after such time as such Selling
Stockholder advised the Company that the filing of a post-effective amendment or
supplement thereto was required, except that this proviso shall not apply if the
untrue statement, omission, or allegation thereof is contained in the Prospectus
as so amended or supplemented, or (b) in an amount that exceeds the net proceeds
received by such Selling Stockholder from the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full
force and effect regardless of any investigation by or on behalf of Company
Indemnified Parties or the Stockholder Indemnified Parties, and shall survive
the transfer of such securities by the Selling Stockholder.
6.3 Procedures. Each Indemnified Party shall give notice
to each Indemnifying Party promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and the Indemnifying
Party may participate at its own expense in the defense, or if it so elects,
assume the defense of any such claim and any action or proceeding resulting
therefrom, including the employment of counsel and the payment of all expenses.
The failure of any Indemnified Party to give notice as provided in this Section
6.3 shall not relieve the Indemnifying Party from its obligations to indemnify
such Indemnified Party, except to the extent the Indemnified Party's failure to
so notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action, or proceeding. If the Indemnifying Party elects to assume
the defense in any action or proceeding, an Indemnified Party shall have the
right to employ separate counsel in such action or proceeding and to participate
in the defense thereof, but such Indemnified Party shall pay the fees and
expenses of such separate counsel unless (a) the Indemnifying Party has agreed
to pay such fees and expenses or (b) the named parties to any such action or
proceeding (including any impleaded parties) include such Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there is or would be a conflict of interest between such
Indemnified Party and the Indemnifying Party in the conduct of the defense of
such action (in which case, if such Indemnified Party notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall
- 17 -
not assume the defense of such action or proceeding on such Indemnified Party's
behalf). No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the Indemnified Party (which consent will not
be unreasonably withheld), consent to entry of any judgment, or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
6.4 Contribution. If the indemnification provided for
under this Section 6 is unavailable to or insufficient to hold the Indemnified
Party harmless under Section 6.1 or Section 6.2 above in respect of any Losses
referred to therein for any reason other than as specified therein, then the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other, in connection with the
statements or omissions that resulted in such Losses. The relative fault of each
Indemnifying Party or Indemnified Party, as the case may be, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by (or that was failed to be
supplied by) such Indemnifying Party or Indemnified Party, such party's relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission. If contribution based upon the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, is not available, then the Indemnifying Party shall contribute to the
amount paid or payable by Indemnified Party as a result of Losses in such
proportion as is appropriate to reflect the relative benefits received by the
Indemnifying Party, on the one hand, and such Indemnified Party, on the other,
from the subject offering or distribution. The relative benefits received by the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other,
shall be deemed to be in the same proportion as the net proceeds of the offering
or other distribution received by the Indemnifying Party bears to the net
proceeds of the offering or other distribution received by the Indemnified
Party. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
7. Limitation on Other Registration Rights. The Company shall not
grant to any Person any demand registration right, incidental registration
right, or other right that would conflict with any of the rights granted to
Stockholders herein.
8. Miscellaneous.
8.1 Notices.
(a) All notices, requests, demands, waivers, and
other communications under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally, mailed, certified or
registered mail with postage prepaid, or sent by reliable overnight courier, or
facsimile transmission, to the address or facsimile number specified for the
applicable party on Schedule A attached to this Agreement, or to such other
Person, address, or facsimile number as any party shall specify by notice in
writing to the other Parties.
- 18 -
(b) Any notice or other communication to a party
in accordance with the provisions of this Agreement shall be deemed to have been
given (i) three (3) Business Days after it is sent by certified or registered
mail, postage prepaid, return receipt requested, (ii) upon receipt when
delivered by hand or transmitted by facsimile (confirmation received), or (iii)
one (1) Business Day after it is sent by a reliable overnight courier service,
with acknowledgment of receipt requested. Notwithstanding the preceding
sentence, notice of change of address shall be effective only upon actual
receipt thereof.
8.2 Amendment. Any provision of this Agreement may be
amended or modified in whole or in part at any time by an agreement in writing
among the Company and the Stockholder holding a majority of the Registrable
Securities, executed in the same manner as this Agreement. No consent, waiver,
or similar act shall be effective unless in writing.
8.3 Entire Agreement. This Agreement constitutes the
entire agreement among the Parties and supersedes all prior agreements and
understandings, oral and written, among the Parties with respect to the subject
matter hereof.
8.4 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
8.5 Governing Law. This Agreement shall be governed by
and interpreted in accordance with the internal laws of the State of California,
without giving effect to principles of conflicts of laws.
8.6 Assignment.
(a) Except as expressly provided in this Section
8.6, the rights of the Parties cannot be transferred or assigned and any
purported assignment or transfer to the contrary shall be void ab initio. So
long as the terms of this Section 8.6 are followed, any Stockholder may transfer
any of its rights under this Agreement, without the consent of the Company, to
any Person to whom such holder transfers any Registrable Securities or any
rights to acquire Registrable Securities, whether such transfer is by sale,
gift, assignment, pledge, or otherwise, so long as:
(i) such transfer is not made pursuant
to an effective Registration Statement or pursuant to Rule 144 or Rule 145 (or
any successor provisions) under the Securities Act or in any other manner the
effect of which is to cause the transferred securities to be freely transferable
without regard to the volume and manner of sale limitations set forth in Rule
144 (or any successor provision) in the hands of the transferee as of the date
of such transfer; and
(ii) such transfer is made (A) to
another Stockholder; (B) to any Person that, directly or indirectly, through the
ownership of voting securities, controls, is controlled by, or is commonly
controlled with such Stockholder; (C) to any investment fund formed by an
affiliate of such Stockholder that is commonly controlled with such Stockholder;
(D) to a trust for the benefit of the equity owners of such Stockholder and of
which the trustee or trustees are one or more Persons that either control, or
are commonly controlled with, such
- 19 -
Stockholder or are banks, trust companies, or similar entities; (E) any Person
for which such Stockholder is acting as nominee or any trust controlled by or
under common control with such Person; (F) any Person, so long as such Person
acquires, pursuant to such transfer or series of related transfers, not less
than fifty thousand (50,000) Registrable Securities (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like), or (G) where
the transferring Stockholder is an individual, (i) to the estate, heirs, or
legatees of such Stockholder upon such Stockholder's death; (ii) to or for the
benefit of any member of such Stockholder's family or to any Person controlled
by such Stockholder or one or more members of such Stockholder's family; or
(iii) to any charitable foundation, charitable trust, or similar entity.
(b) In addition to the transfers permitted by
Section 8.6(a), so long as the other terms of this Section 8.6 are followed, any
Stockholder may transfer any of its rights under this Agreement (other than its
rights under Section 2), without the consent of the Company, to any charitable
organization to which Registrable Securities are transferred by any charitable
foundation, charitable trust, or similar entity to which Registrable Securities
were previously transferred in accordance with Section 8.6(a); provided that any
notice under this Agreement that the Company would otherwise be required to
deliver to such charitable organization, as transferee of any of the
transferor's rights under this Agreement, may be given to the transferor of such
Registrable Securities at the address or facsimile number specified by the
transferor in accordance with Section 8.1(a).
(c) Notwithstanding Section 8.6(a) or Section
8.6(b), no Stockholder may assign any of its rights under this Agreement to any
Person to whom such Stockholder transfers any Registrable Securities unless the
transfer of such Registrable Securities did not require registration under the
Securities Act.
(d) The nature and extent of any rights assigned
shall be as agreed to between the assigning party and the assignee. Any assignee
hereunder shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including the provisions of this Section 8.6.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
8.7 Binding Agreement; No Third Party Beneficiaries. This
Agreement will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. This Agreement shall constitute a binding
agreement among the Company and each other Persons executing this Agreement at
such time as it has been executed by the Company and such other Persons, even if
additional Persons whose names appear on the signature page to this Agreement
have not executed and delivered this Agreement and may or may not do so at a
later time. Except as set forth herein and by operation of law, no party to this
Agreement may assign or delegate all or any portion of its rights, obligations,
or liabilities under this Agreement without the prior written consent of each
other party to this Agreement.
[Signature page follows.]
- 20 -
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth herein.
NOVATEL WIRELESS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
"PURCHASERS"
BAY INVESTMENTS LIMITED
By: /s/ X.X. Xxxxxxx
-----------------------------------------
Name: X.X. Xxxxxxx
Title: Director
MUTUAL TRUST MANAGEMENT (BERMUDA)
LIMITED AS TRUSTEE OF SOFAER FUNDS/
GLOBAL HEDGE FUND
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorised signatory of Sofaer Capital Inc.
Authorised Investment Adviser
RIT CAPITAL PARTNERS PLC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorised signatory of Sofaer Capital Inc.
Authorised Investment Adviser
SOEN XXXX XXX
By: /s/ Soen Xxxx Xxx
---------------------------------
Soen Xxxx Xxx
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
XXXXX XXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx
CORNERSTONE EQUITY INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxx
-----------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
PS CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
PAN INVEST & TRADE INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Director
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
SCHEDULE A
Addresses for Notice Purposes
IF TO THE COMPANY:
Novatel Wireless, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx,
Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: J. Xxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
IF TO THE PURCHASERS:
Mutual Trust Management (Bermuda) RIT Capital Partners plc.
Limited as Trustee of Sofaer Funds/Global Hedge Fund Xxxxxxx House
Xxxxxxxxxx Xxxxx 00 Xx. Xxxxx' Xxxxx
0 Xxxxxx Xxxxxx Xxxxxx
P.O. Box HM 951 SW1A 1NR
Attention: Xxxxxxx Xxxxxx Attention: Xxxxxxx Xxxxxx
Pan Invest & Trade Inc. Bay Investments Limited
10th Floor Suite 1806, 18/F
0 Xxxxx'x Xxxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxx 00 Xxxxxxx Xxxx
Attention: Xxxx XxXxxx Xxxxx XxxXxxx
Hong Kong
Attention: Xxxxx Xxxxxxx
Soen Xxxx Xxx Xxxxx Xxxxxxxx
#25 - 8, Sangdo 2 -Dong Novatel Wireless, Inc.
Dongjak - Xx 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx, Xxxxx 000-00 Xxxxx 000
Xxx Xxxxx, XX 00000
Cornerstone Equity Investors, LLC PS Capital LLC
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx,
Xxxxx 0000 Xxxxx 00x
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx Attention: Xxxx Xxxx
With a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
SIGNATURE PAGE TO REGISTRATION
RIGHTS AGREEMENT
