Exhibit 10.5.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated August __, 1997, by and among STRATUS
SERVICES GROUP, INC., a Delaware corporation (the "Company"), and CONGRESS
FINANCIAL CORPORATION (WESTERN), a California corporation (the "Investor").
RECITALS
WHEREAS, Investor currently owns 200,000 shares of common stock, $.01 par
value per share, (the "Common Stock") of the Company; and
WHEREAS, The parties hereto deem it to be in their best interests to set
forth their rights and obligations in connection with public offerings and sales
of shares of Common Stock.
NOW THEREFORE, the parties agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect from time to time.
"Initial Public Offering" means the first underwritten public offering of
Common Stock for sale to the public for the account of the Company and offered
on a "firm commitment" or "best efforts" basis pursuant to an offering
registered under the Securities Act with the Commission on Form S-1 or its then
equivalent which closes.
"Other Shares" means at any time those shares of Common Stock which do not
constitute Primary Shares or Registrable Shares.
"Primary Shares" means at any time the authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Shares" means at any time, with respect to any Stockholder,
the Restricted Shares held by such Stockholder which constitute Common Stock.
"Restricted Shares" means at any time, with respect to any Stockholder,
the shares of Common Stock, any other securities which by their terms are
exercisable or exchangeable for or
convertible into Common Stock or other securities which are so exercisable or
convertible and any securities received in respect thereof, which are held by
such Stockholder and which have not previously been sold to the public pursuant
to a registration statement under the Securities Act or pursuant to Rule 144 or
which are not (or would not be, upon any such exercise, exchange or conversion)
eligible for sale by the holder thereof under Rule 144(k) or any successor rule
thereto or any complementary rule thereto.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"Stockholders" means, collectively, the Investor and any person or entity
that acquires Restricted Shares directly or indirectly from the Investor in
accordance with Section 14.
"Transfer" means any disposition of any Restricted Shares or of any
interest therein which constitutes a sale within the meaning of the Securities
Act, other than any disposition pursuant to an effective registration statement
under the Securities Act and complying with all applicable state securities and
"blue sky" laws.
SECTION 2. Piggyback Registration.
If the Company at any time proposes for any reason to register Primary
Shares or Other Shares under the Securities Act (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto or other
than in connection with an exchange offer or offering solely to the Company's
stockholders ) one year or more after the Initial Public Offering, it shall
promptly give written notice to each Stockholder of its intention to so register
the Primary Shares or Other Shares and, upon the written request, given within
10 days after delivery of any such notice by the Company, of any Stockholder to
include in such registration Registrable Shares held by such Stockholder (which
request shall specify the number of Registrable Shares proposed to be included
in such registration), the Company shall use its reasonable best efforts to
cause all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; provided, however, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of the Primary Shares proposed to be registered by the
Company, then the number of Primary Shares, Registrable Shares and Other Shares
proposed to be included in such registration shall be included in the following
order:
(a) first, the Primary Shares;
(b) second, the Registrable Shares and the Other Shares, pro rata
based upon the number of shares of Common Stock owned by each such
stockholder requesting registration; and
(c) third, to the Other Shares.
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SECTION 3. Expenses.
The Company shall bear the expense of all registrations effected pursuant
to Section 2, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, and fees and
expenses of the Company's counsel and accountants, and the fees and expenses of
the Selling Stockholders' Counsel (as defined below), but excluding any
underwriters' or brokers' discounts or commissions and the fees of any counsel
to the Selling Stockholders, other than the Selling Stockholders' Counsel.
SECTION 4. Holdback Agreement.
(a) If the Company at any time shall register shares of Common Stock
under the Securities Act pursuant to an Initial Public Offering and the managing
underwriter for such registration shall request, the Stockholders shall not
sell, make any short sale of, grant any option for the purchase of, or otherwise
dispose of any Restricted Shares (other than those shares of Common Stock
included in such registration) without the prior written consent of the Company
for a period designated by the managing underwriter in writing to the
Stockholders, which period shall not begin more than 10 days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement.
(b) If the Company at any time shall register shares of Common Stock
under the Securities Act (including any registration pursuant to Section 2) for
sale to the public after the Initial Public Offering and the managing
underwriter for such registration shall request, the Stockholders shall not
sell, make any short sale of, grant any option for the purchase of, or otherwise
dispose of any Restricted Shares (other than those shares of Common Stock
included in such registration) without the prior written consent of the Company
for a period designated by the managing underwriter in writing to the
Stockholders, which period shall not begin more than 10 days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement.
SECTION 5. Preparation and Filing.
If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its commercially reasonable efforts to
effect the registration of any Registrable Shares, the Company shall, as
expeditiously as practicable:
(a) use its reasonable best efforts to cause a registration
statement that registers such Registrable Shares to become and remain
effective for a period of 180 days or until all of such Registrable Shares
have been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amended documents or supplements
relating to such a registration statement or prospectus, to one
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counsel selected by the holders of a majority of such Registrable Shares
(the "Selling Stockholders' Counsel"), copies of all such documents
proposed to be filed (it being understood that such five-business-day
period need not apply to successive drafts of the same document proposed
to be filed so long as such successive drafts are supplied to such counsel
in advance of the proposed filing by a period of time that is customary
and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 180 days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing the Selling Stockholders' Counsel promptly (i)
of the receipt by the Company of any notification with respect to any
comments by the Commission with respect to such registration statement or
prospectus or any amendment or supplement thereto or any request by the
Commission for the amending or supplementing thereof or for additional
information with respect thereto, (ii) of the receipt by the Company of
any notification with respect to the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purposes;
(e) use its commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any seller of Registrable Shares reasonably requests
and do any and all other acts and things which may be reasonably necessary
or advisable to enable such seller of Registrable Shares to consummate the
disposition in such jurisdictions of the Registrable Shares owned by such
seller; provided, however, that the Company will not be required to
qualify generally to do business, subject itself to general taxation or
consent to general service of process in any jurisdiction where it would
not otherwise be required so to do but for this paragraph (e);
(f) furnish to each seller of such Registrable Shares such number of
copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such seller of Registrable
Shares may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(g) use its commercially reasonable efforts to cause such
Registrable Shares to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers
thereof to consummate the disposition of such Registrable Shares;
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(h) notify on a timely basis each seller of such Registrable Shares
at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the appropriate
period mentioned in paragraph (a) of this Section, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing and, at the request of such seller, prepare
and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the offerees of such shares, such prospectus shall
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(i) make available for inspection by the Selling Stockholders'
Counsel or any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees
to supply all information (together with the Records, the "Information")
reasonably requested by any such Inspector in connection with such
registration statement. Any of the Information which the Company
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the Inspectors
unless (i) the disclosure of such Information is necessary to avoid or
correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or (iii) such Information has
been made generally available to the public. The seller of Registrable
Shares agrees that it will, upon learning that disclosure of such
Information is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Information deemed
confidential;
(j) use its reasonable best efforts to obtain from its independent
certified public accountants "comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by
comfort letters;
(k) use its commercially reasonable efforts to obtain from its
counsel an opinion or opinions in customary form;
(1) provide a transfer agent and registrar (which may be the same
entity and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which any seller of Registrable
Shares may sell shares in such offering certificates evidencing such
Registrable Shares; provided,
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however, that the Company shall have the right to approve any such
underwriter with such approval not to be unreasonably withheld;
(n) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock
is not listed on a national securities exchange, use its commercially
reasonable efforts to qualify such Registrable Shares for inclusion on the
automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD") or such national securities exchange as the
holders of a majority of such Registrable Shares shall request;
(o) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the registration
statement, which earnings statements shall satisfy the provisions of
Section 11(a) of the Securities Act; and
(p) use its commercially reasonable efforts to take all other steps
necessary to effect the registration of such Registrable Shares
contemplated hereby.
SECTION 6. Indemnification.
In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Company shall indemnify and hold
harmless the seller of such Registrable Shares, its officers and directors, each
underwriter, broker or any other person acting on behalf of such seller and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such seller, such officer or
director, such underwriter, such broker or such other person acting on behalf of
such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller or underwriter specifically for use
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in the preparation thereof; provided, further, that the foregoing indemnity
shall not inure to the benefit of any underwriter, with respect to any
preliminary prospectus, from who the person asserting any losses, claims,
damages and liabilities and judgments purchased Registrable Shares or any person
controlling such underwriter, if a copy of the pjospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such underwriter to such
person, if required by law so to have been delivered, or prior to a written
confirmation of the sale of the Registrable Shares to such person, and if the
prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment, unless such failure to
deliver the prospectus (as so amended and supplemented) was a result of
noncompliance by the Company with Section 5(f) hereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the preceding paragraph of this Section) the Company, each director
of the Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of such
seller, each person who controls any of the foregoing persons within the meaning
of the Securities Act and each other seller of Registrable Shares under such
registration statement with respect to any statement or omission from such
registration statement, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company or such
underwriter through an instrument duly executed by such seller or underwriter
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; provided, however, that the obligation to indemnify will be several,
not joint and several, among such sellers of Registrable Shares, and the maximum
amount of liability in respect of such indemnification shall be in proportion to
and limited to, in the case of each seller of Registrable Shares, an amount
equal to the net proceeds actually received by such seller from the sale of
Registrable Shares effected pursuant to such registration.
The indemnification required by this Section 6 will be made by periodic
payments during the course of the investigation or defense, as and when bills
are received or expenses incurred, subject to prompt refund in the event any
such payments are determined not to have been due and owing hereunder.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently
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incurred by the latter in connection with the defense thereof; provided,
however, that if any indemnified party shall have reasonably concluded that
there may be one or more legal or equitable defenses available to such
indemnified party which are additional to or conflict with those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section.
The indemnification provided for under this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling person of such
indemnified party and will survive the transfer of securities.
If the indemnification provided for in this Section is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage or liability as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the sellers of Registrable Shares agree that it would not be just and equitable
if contributions pursuant to this paragraph were determined by pro rata
allocation or by any other method of allocation which did not take into account
the equitable considerations referred to herein. The amount paid or payable to
an indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to above shall be deemed to include, subject to the limitation
set forth in the fourth paragraph of this Section 6, any legal or other expenses
reasonably incurred in connection with investigating or defending the same.
Notwithstanding the foregoing, in no event shall the amount contributed by a
seller of Registrable Shares exceed the aggregate net offering proceeds received
by such seller from the sale of its Registrable Shares.
SECTION 7. Underwriting Agreement.
Notwithstanding the provisions of Sections 4, 5 and 6, to the extent that
the Company and the Stockholders selling Registrable Shares in a proposed
registration shall enter into an underwriting or similar agreement, which
agreement contains provisions covering one or more issues addressed in such
Sections, the provisions contained in such Sections addressing such issue or
issues shall be superseded with respect to such registration by such other
agreement.
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SECTION 8. Information by Holder.
Each Stockholder selling Registrable Shares in a proposed registration
shall furnish to the Company such written information regarding such holder and
the distribution proposed by such Stockholder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 9. Exchange Act Compliance.
From and after the date a registration statement filed by the Company
pursuant to the Exchange Act relating to any class of the Company's securities
shall have become effective and until the Company is no longer obligated to make
filings under Section 13(a) of the Exchange Act, the Company shall comply with
all of the reporting requirements of the Exchange Act and with all other public
information reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The Company shall
cooperate with each Stockholder in supplying such information as may be
necessary for such Stockholder to complete and file any information reporting
forms presently or hereafter required by the Commission as a condition to the
availability of Rule 144.
SECTION 10. No Conflict of Rights.
The Company represents and warrants to the Stockholders that the
registration rights granted to the Stockholders hereby do not conflict with any
other registration rights granted by the Company.
SECTION 11. Restriction on Transfer.
(a) The Restricted Shares shall not be transferable except upon the
conditions specified in this Section, which conditions are intended to insure
compliance with the provisions of the Securities Act.
(b) Each certificate representing Restricted Shares shall (unless
otherwise permitted by the provisions of paragraph (c) and (d) below) be stamped
or otherwise imprinted with a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS AND UNTIL SUCH SHARES ARE REGISTERED UNDER THE ACT AND SUCH LAWS OR
(1) REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED
AND (2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED."
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(c) The holder of any Restricted Shares by acceptance thereof
agrees, prior to any Transfer of any Restricted Shares, to give written notice
to the Company of such holder's intention to effect such Transfer and to comply
in all other respects with the provisions of this Section. Each such notice
shall describe the manner and circumstances of the proposed Transfer. Upon
request by the Company, the holder delivering such notice shall deliver a
written opinion, addressed to the Company, of counsel for the holder of
Restricted Shares, stating that in the opinion of such counsel (which opinion
and counsel shall be reasonably satisfactory to the Company) such proposed
Transfer does not involve a transaction requiring registration or qualification
of such Restricted Shares under the Securities Act or the securities or "blue
sky" laws of any state of the United States. Such holder of Restricted Shares
shall be entitled to Transfer such Restricted Shares in accordance with the
terms of the notice delivered to the Company, if the Company does not reasonably
object to such Transfer and request such opinion within fifteen days after
delivery of such notice, or, if it requests such opinion, does not reasonably
object to such Transfer within fifteen days after delivery of such opinion. Each
certificate or other instrument evidencing the securities issued upon the
Transfer of any Restricted Shares (and each certificate or other instrument
evidencing any untransferred balance of such Registered Shares) shall bear the
legend set forth in paragraph (b) above unless (i) in such opinion of counsel to
the holder of Restricted Shares (which opinion and counsel shall be reasonably
acceptable to the Company) registration of any future Transfer is not required
by the applicable provisions of the Securities Act or (ii) the Company shall
have waived the requirement of such legends.
(d) Notwithstanding the foregoing provisions of this Section, the
restrictions imposed by this Section upon the transferability of any Restricted
Shares shall cease and terminate when (i) any such Restricted Shares are sold or
otherwise disposed of (A) pursuant to an effective registration statement under
the Securities Act or (B) in a transaction contemplated by paragraph (c) above
which does not require that the Restricted Shares so transferred bear the legend
set forth in paragraph (b) hereof, or (ii) the holder of such Restricted Shares
has met the requirements for Transfer of such Restricted Shares under Rule
144(k) under the Securities Act (subject to the delivery of opinions as set
forth above). Whenever the restrictions imposed by this Section shall terminate,
the holder of any Restricted Shares as to which such restrictions have
terminated shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in paragraph (b) above
and not containing any other reference to the restrictions imposed by this
Section.
SECTION 14. Termination.
This Agreement shall terminate and be of no further force or effect on the
earlier of (a) the date on which there remains no Restricted Shares outstanding
or (b) the date which is three years after the Initial Public Offering.
SECTION 13. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Company and the
Stockholders and, subject to Section 14, their respective successors and
assigns.
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SECTION 14. Assignment.
The Stockholders may assign their rights hereunder to any persons or
entities that acquires Restricted Shares from an Investor; provided, however,
that such person or entity shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement whereupon
such person or entity shall have the benefits of, and shall be subject to the
restrictions contained in, this Agreement with respect to such Restricted
Shares.
SECTION 15. Entire Agreement.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings with respect hereto.
SECTION 16. Notices.
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument and
shall be deemed to have been duly given when delivered in person, by telecopy,
by nationally-recognized overnight courier, or by first class registered or
certified mail, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
the addressee to the address or: if to the Company, to 000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxxxx 00000, and if to the Investors, to the address set
forth for such Investor on Schedule A attached hereto.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day and (c) in the
case of mailing, on the third business day following such mailing if sent by
certified mail, return receipt requested.
SECTION 17. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified or amended,
except pursuant to a writing signed by the Company and the Stockholders holding
at least a majority of the Restricted Shares (based upon Common Stock
equivalents) then held by the Stockholders.
SECTION 18. Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
SECTION 19. Headings.
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
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SECTION 20. Severability.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 21. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to principles governing
conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
STRATUS SERVICES GROUP, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
CONGRESS FINANCIAL CORPORATION (WESTERN)
By: /s/Xxxxx XxXxxxxx
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Name:
Title: Senior Vice President
12
Schedule A
Investor Address Shares of Common
-------- ------- ----------------
Stock
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Congress Financial Corporation 200,000
(Western)
