EXHIBIT 4.2
INVESTOR RIGHTS AGREEMENT
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This INVESTOR RIGHTS AGREEMENT (this "Agreement) is made and entered into
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as of the 5th day of June, 1995 by and between ANALYTICAL GRAPHICS, INC., a
Pennsylvania corporation (the "Company), and SPACEVEST FUND, L.P., a Delaware
limited partnership (the "Investor).
R E C I T A L S
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A. The Investor has agreed to purchase from the Company, and the Company
has agreed to sell to the Investor, shares of the Company's Series A Preferred
Stock (Series A Stock) on the terms and conditions set forth in that certain
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Series A Preferred Stock Purchase Agreement, of even date herewith by and
between the Company and the Investor (the "Series A Agreement).
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B. The Series A Agreement provides that the Investor shall be granted
certain information and registration rights and rights of first refusal, all as
more fully set forth herein.
1. INFORMATION RIGHTS.
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1.1 FINANCIAL INFORMATION. The Company covenants and agrees that,
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commencing on the date of this Agreement, for so long as the Investor holds
shares of Series A Stock issued under the Series A Agreement or shares of Common
Stock of the Company (Common Stock) issued upon the conversion of such shares of
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Series A Stock (Conversion Stock) the Company will:
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(A) ANNUAL REPORTS. Furnish to the Investor, as soon as
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practicable and in any event within seventy-five (75) days after the end of each
fiscal year of the Company, a consolidated Balance Sheet as of the end of such
fiscal year, a consolidated Statement of Income and a consolidated Statement of
Cash Flows of the Company and its subsidiaries for such year, setting forth in
each case in comparative form the figures from the Company's previous fiscal
year (if any), all prepared in accordance with generally accepted accounting
principles and practices and audited by nationally recognized independent
certified public accountants. The Company hereby covenants and agrees to deliver
to the Investor all audited financial statements required by this Section
l.l(a), for the Company's 1994 fiscal year, on or before September 1, 1995;
(B) QUARTERLY REPORTS. Furnish to the Investor as soon as
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practicable, and in any case within forty five (45) days after the end of each
fiscal quarter of the Company (except the last quarter of the Company's fiscal
year), quarterly unaudited financial statements, including an unaudited Balance
Sheet, and an unaudited Statement of Income and an unaudited Statement of Cash
Flows, together with a comparison to the Company's operating plan and budget and
statements of the Chief Financial Officer of the Company explaining any
significant differences in the statements from the Company's operating plan and
budget for the period and
stating that such statements fairly present the consolidated financial position
and consolidated financial results of the Company for the fiscal quarter
covered;
(C) ANNUAL BUDGET. Furnish to the Investor as soon as
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practicable and in any event no later than thirty (30) days after the close of
each fiscal year of the Company, an annual operating plan and budget, prepared
on a monthly basis, for the next immediate fiscal year. The Company shall also
furnish to the Investor, within a reasonable time of its preparation, amendments
to the annual budget, if any.
1.2 INSPECTION RIGHTS. The Company shall permit the Investor, at the
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Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor. The Investor agrees to hold all information received from such
inspections in confidence, and not to use or disclose any of such information to
any third party, except to the extent such information may be made publicly
available by the Company.
1.3 TERMINATION OF CERTAIN RIGHTS. The Company's obligations under
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Sections 1.1 and 1.2 above will terminate upon the closing of the Company's
initial public offering of Common Stock pursuant to an effective registration
statement filed under the U.S. Securities Act of 1933, as amended (the
"Securities Act").
2. REGISTRATION RIGHTS.
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2.1 DEFINITIONS. For purposes of this Section 2:
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(A) REGISTRATION. The terms "register, registered, and
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"registration" refer to a registration effected by preparing and filing a
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registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
(B) REGISTRABLE SECURITIES. The term "Registrable Securities"
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means: (1) all shares of Conversion Stock that are now owned or may hereafter be
acquired by the Investor or any of the Investor's permitted successors and
assigns; and (2) any shares of Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, all such shares of Common Stock described in
clause (1) of this subsection (b); excluding in all cases, however, any
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Registrable Securities sold by a person in a transaction in which rights under
this Section 2 are not assigned in accordance with this Agreement or any
Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Securities Act.
C) REGISTRABLE SECURITIES THEN OUTSTANDING. The number of
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shares of "Registrable Securities then outstanding" shall mean the number of
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shares of Common Stock which are Registrable Securities and (1) are then issued
and outstanding or (2) are then issuable
pursuant to the exercise or conversion of then outstanding and then exercisable
options, warrants or convertible securities.
(D) SEC. The term "SEC" or "Commission" means the U.S. Securities
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and Exchange Commission.
2.2 DEMAND REGISTRATION.
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(A) REQUEST BY THE INVESTOR. If the Company shall receive at any
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time after the date twelve (12) months after the effective date of the Company's
initial public offering of its securities pursuant to a registration filed under
the Securities Act, a written request from the Investor that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities pursuant to this Section 2.2, then the Company shall
effect, as soon as practicable, the registration under the Securities Act of all
Registrable Securities which the Investor requests to be registered and included
in such registration by written notice given by the Investor to the Company,
subject only to the limitations of this Section 2.2; provided that the
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Registrable Securities requested by the Investor to be registered pursuant to
such request must either (i) be at least twenty-five percent (25 %) of all
Registrable Secunties then outstanding or (ii) have an anticipated aggregate
public offering price (before any underwriting discounts and commissions) of not
less than $1,000,000.00.
(B) UNDERWRITING. If the Investor intends to distribute the
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Registrable Securities covered by its request by means of an underwriting, then
the Investor shall so advise the Company as a part of its request made pursuant
to this Section 2.2. In such event, the Investor shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the underwriter(s) advise(s) the Company
in writing that marketing factors require a limitation of the number of
securities to be underwritten then the Company shall so advise the Investor, and
the number of Registrable Securities that may be included in the underwriting
shall be reduced as required by the underwriter(s); provided, however, that the
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number of shares of Registrable Securities to be included in such underwriting
and registration shall not be reduced unless all other securities of the Company
are first entirely excluded from the underwriting and registration. Any
Registrable Securities excluded and withdrawn from such underwriting shall be
withdrawn from the registration.
(C) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. The Company is
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obligated to effect only one (1) such registration pursuant to this Section 2.2.
(D) DEFERRAL. Notwithstanding the foregoing, if the Company
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shall furnish to the Investor a certificate signed by the President or Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be filed and it
is therefore essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for a period of not more
than 180 days
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after receipt of the request of the Investor; provided, however, that the
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Company may not utilize this right more than once in any twelve (12) month
period.
(E) EXPENSES. All expenses incurred in connection with a
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registration pursuant to this Section 2.2, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of counsel for the Investor (but excluding underwriters' discounts
and commissions), shall be borne by the Company. The Investor shall bear its
proportionate share (based on the total number of shares sold in such
registration) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such offering. Notwithstanding the
foregoing, the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to this Section 2.2 if the registration
request is subsequently withdrawn at the request of the Investor; provided,
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further, however, that if at the time of such withdrawal, the Investor has
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learned of a material adverse change in the condition, business, or prospects of
the Company not known to the Investor at the time of its request for such
registration and has withdrawn its request for registration with reasonable
promptness after learning of such material adverse change, then the Investor
shall not be required to pay any of such expenses and shall retain its rights
pursuant to this Section 2.2.
2.3 PIGGYBACK REGISTRATIONS.
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(A) REGISTRATION RIGHTS. The Company shall notify the Investor
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in writing at least thirty (30) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to any registration under Section 2.2
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of this Agreement or to any employee benefit plan or a corporate reorganization)
and will afford the Investor an opportunity to include in such registration
statement all or any part of the Registrable Securities then held by the
Investor. If the Investor desires to include in any such registration statement
all or any part of the Registrable Securities held by the Investor, it shall,
within twenty (20) days after receipt of the above-described notice from the
Company, so notify the Company in writing, and in such notice shall inform the
Company of the number of Registrable Securities the Investor wishes to include
in such registration statement. If the Investor decides not to include all of
its Registrable Securities in any registration statement thereafter filed by the
Company, the Investor shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
B) UNDERWRITING. If a registration statement under which the
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Company gives notice under this Section 2.3 is for an underwritten offering,
then the Company shall so advise the Investor in writing. In such event, the
right of the Investor to have its Registrable Securities included in a
registration pursuant to this Section 2.3 shall be conditioned upon the
Investor's participation in such underwriting and the inclusion of the
Investor's
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Registrable Securities in the underwriting to the extent provided herein. In
connection with such underwritten offering, the Investor shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude shares
(including Registrable Securities) from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first, to the Company in full, and second, to
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the Investor; provided however, that the right of the underwriters to exclude
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shares (including Registrable Securities) from the registration and underwriting
as described above shall be restricted so that: (i) the number of Registrable
Securities included in any such registration is not reduced below twenty-five
percent (25%) of the shares included in the registration, except for a
registration relating to the Company's initial public offering from which all
Registrable Securities may be excluded; and (ii) all shares that are not
Registrable Securities and are held by persons who are employees or directors of
the Company (or any subsidiary of the Company) shall first be excluded from such
registration and underwriting before any Registrable Securities are so excluded.
If the Investor disapproves of the terms of any such underwriting, the Investor
may elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least ten (10) business days prior to the effective
date of the registration statement. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
(C) EXPENSES. All expenses incurred in connection with a
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registration pursuant to this Section 2.3 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and blue
sky registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and reasonable fees and disbursements
of counsel for the Investor, shall be borne by the Company. The Investor shall
bear its proportionate share (based on the total number of shares sold in such
registration) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such registration.
2.4 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
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registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(A) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Investor, keep such registration statement effective for up to ninety (90) days.
(B) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
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(C) Furnish to the Investor such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the Investor may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by the Investor that are included in such registration.
(D) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Investor,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(E) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering.
(F) Notify the Investor at any time when a prospectus relating
to such registration statement is required to be delivered under the Securities
Act of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.
(G) Furnish, at the request of the Investor, on the date that
its Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to the Investor,
addressed to the underwriters, if any, and to the Investor, and (ii) a comfort"
letter dated as of such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering
and reasonably satisfactory to the Investor, addressed to the underwriters, if
any, and to the Investor requesting registration of Registrable Securities.
2.5 FURNISH INFORMATION. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to Sections 2.2 or 2.3
that the Investor shall furnish to the Company such information regarding the
Investor, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of its Registrable Securities.
2.6 DELAY OF REGISTRATION. The Investor shall not have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
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2.7 INDEMNIFICATION. In the event any Registrable Securities are
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included in a registration statement under Sections 2.2 or 2.3:
(A) BY THE COMPANY. To the extent permitted by law, the Company
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shall indemnify and hold harmless the Investor and its partners, any underwriter
(as defined in the Securities Act) for the Investor and each person, if any, who
controls the Investor or underwriter within the meaning of the Securities Act or
the Securities Exchange Act of 1934, as amended, (the "1934 Act") (collectively,
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"Investor Indemnities), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"):
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(I) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(II) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make
the statements therein not misleading, or
(III) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law
or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any federal or state securities law in connection
with the offering covered by such registration statement;
and the Company will reimburse each of the Investor Indemnities for any legal or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this subsection
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2.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any Investor
Indemnities, including without limitation, any information furnished by the
Investor to the Company pursuant to Section 2.5 hereof.
(B) BY THE INVESTOR. To the extent permitted by law, the
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Investor will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the registration statement, and each
person, if any, who controls the Company within the
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meaning of the Securities Act or the 1934 Act (collectively, "Company
Indemnities), against any losses, claims, damages or liabilities ( one or
several) to which the Company or any such Company Indemnittee may become subject
under the Securities Act, the 1934 Act or other federal or state law, but only,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by the Investor, and known by
the Investor to be furnished, expressly for use in connection with such
registration, including without limitation any information furnished by the
Investor to the Company pursuant to Section 2.5 hereof; and the Investor will
reimburse any legal or other expenses reasonably incurred by the Company or any
such Company Indemnittee as incurred in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the indemnity agreement contained in this subsection 2.7(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Investor which
consent shall not be unreasonably withheld; and provided further, that the total
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amounts payable in indemnity by the Investor under this Section 2.7(b) in
respect of any Violation shall not exceed the net proceeds received by the
Investor in the registered offering out of which such Violation arises.
(C) NOTICE. Promptly after receipt by an indemnified party under
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this Section 2.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
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have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.7, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.7.
(D) DEFECT ELIMINATED IN FINAL PROSPECTUS. The foregoing
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indemnity agreements of the Company and the Investor are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the Final
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Prospectus), such indemnity agreement shall not inure to the benefit of any
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person if a copy of the Final Prospectus was furnished to the
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indemnified party and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
(E) SURVIVAL. The obligations of the Company and the Investor
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under this Section 2.7 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
2.8 RULE 144 REPORTING. With a view to making available the benefits
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of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to:
(A) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(B) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements); and
(C) So long as the Investor owns any Registrable Securities, to
furnish to the Investor forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the 1934 Act (at any time after it has
become subject to the reporting requirements of the 1934 Act), a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents of the Company as the Investor may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Investor to sell
any such securities without registration (at any time after the Company has
become subject to the reporting requirements of the 1934 Act).
2.9 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
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date of this Agreement, the Company shall not, without the prior written consent
of the Investor enter into any agreement with any holder or prospective holder
of any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
2.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Investor which is included, or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 2.2(a), or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 2.2.
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3. ASSIGNMENT AND AMENDMENT.
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3.1 ASSIGNMENT. Notwithstanding anything herein to the contrary:
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(A) INFORMATION RIGHTS. The rights of the Investor under Section
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1.1 or 1.2 hereof may be assigned only to a party who acquires from the Investor
(or the Investor's permitted assigns) at least 75,000 shares of Series A Stock
or an equivalent number (on an as converted basis) of shares of Registrable
Securities issued upon conversion thereof.
(B) REGISTRATION RIGHTS. The registration rights of the Investor
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under Section 2 hereof may be assigned only to a party who acquires at least
125,000 shares of Series A Stock or an equivalent number (on an as-converted
basis) of Registrable Securities issued upon conversion thereof; provided,
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however that no party may be assigned any of the foregoing rights unless the
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Company is given written notice by the assigning party at the time of such
assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and provided further that any such assignee shall receive such assigned rights
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subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Section 3.
3.2 AMENDMENT OF RIGHTS. Any provision of this Agreement may be
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amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investor.
3.3 NOTICES. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the Investor at:
One Fountain Square
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx X. Xxxxxx, Esquire
Hunton & Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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or, in the case of the Company, at:
000 Xxxxxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxxx Ingersoll
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxxxxxx Center
Xxxxxxxxx, Xxx Xxxxxx 00000
or at such other address as any party or the Company may designate by giving ten
(10) days advance written notice to all other parties.
3.4 ENTIRE AGREEMENT. This Agreement, together with all the Exhibits
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hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
3.5 GOVERNING LAW. This Agreement shall be governed by and construed
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exclusively in accordance with the internal laws of the Commonwealth of
Pennsylvania as applied to agreements among Pennsylvania residents entered into
and to be performed entirely within Pennsylvania excluding that body of law
relating to conflict of laws and choice of law.
3.6 SEVERABILITY. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.7 THIRD PARTIES. Nothing in this Agreement, express or implied, is
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intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.8 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 3.1,
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the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of the parties hereto.
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3.9 CAPTIONS. The captions to sections of this Agreement have been
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inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3.11 COSTS AND ATTORNEYS' FEES. In the event that any action, suit
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or other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
3.12 ADJUSTMENTS FOR STOCK SPLITS. ETC. Wherever in this Agreement
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there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
3.13 AGGREGATION OF STOCK. All shares held or acquired by affiliated
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entities or persons shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY: THE INVESTOR:
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ANALYTICAL GRAPHICS, INC., SPACEVEST FUND, L.P.,
a Pennsylvania corporation a Delaware limited partnership
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXXX
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Title: PRESIDENT & CEO Title: GENERAL PARTNER
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