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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into as of November 15, 1999 by and among XXXXXXXXX RESEARCH, INC., a Delaware
corporation ("BUYER"), and XXXX XXXXXXXX AND XXXXXXX XXXXX, the former
shareholders of XXXXXXXX RESEARCH, a limited liability corporation under the
laws of the United Kingdom (collectively the "SHAREHOLDERS" and individually a
"SHAREHOLDER").
RECITALS
WHEREAS, Buyer and the Shareholders are parties to a certain Stock Purchase
Agreement dated as of November 15, 1999 (the "PURCHASE AGREEMENT") pursuant to
which Buyer is acquiring all of the issued share capital of Xxxxxxxx from the
Shareholders in exchange for the issuance by Buyer of shares of Buyer's Common
Stock, $0.01 par value per share (the "BUYER COMMON STOCK"), as set forth in the
Purchase Agreement.
WHEREAS, the execution and delivery of this Registration Rights Agreement
by the parties hereto is a condition precedent to the obligations of the parties
to consummate the transactions under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings indicated below:
"1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission thereunder, as in effect from time
to time.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder, as in effect
from time to time.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York City are
authorized or obligated by law or executive order to close.
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"CLOSING DATE" means the closing date specified in the Purchase
Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission.
"HOLDER" means any person owning Registrable Securities who is a party
to this Agreement, and any transferee thereof in accordance with Section 11 of
this Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement (including,
without limitation, any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement), and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"REGISTER, REGISTRATION AND REGISTERED" means a registration effected
by preparing and filing a registration statement or similar document with the
Commission in compliance with the 1933 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means twenty-five percent (25%) of the shares
of Buyer Common Stock issued to each Shareholder on the Closing Date pursuant to
the Purchase Agreement and held continuously from the Closing Date by the
Shareholders; PROVIDED, HOWEVER, that those shares as to which the following
apply shall cease to be Registrable Securities if: (a) a Registration Statement
with respect to the sale of such Registrable Securities shall have become
effective under the 1933 Act and such Registrable Securities shall have been
disposed of under such Registration Statement; (b) such Registrable Securities
shall have become transferable, and have been so transferred, in accordance with
the resale provisions of Rule 144 or any successor rule or provision, under the
1933 Act; (c) such Registrable Securities shall have been transferred in a
transaction in which a Shareholder's rights and obligations under this Agreement
were not properly assigned in accordance with this Agreement; (d) such
Registrable Securities shall have ceased to be outstanding; or (e) the shares of
Buyer Common Stock have previously been sold in accordance with the terms of
this Agreement.
"REGISTRATION EXPENSES" means all expenses incident to Buyer's
performance of or compliance with Section 2 hereof, including, without
limitation, all registration and filing fees; PROVIDED, HOWEVER, that
Registration Expenses shall not include underwriters' discounts or commissions
associated with the sale of the Registrable Securities.
"REGISTRATION PERIOD" means the period commencing on the date hereof
or and continuing through November 30, 2000.
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"REGISTRATION STATEMENT" means a registration statement prepared and
filed with the Commission in compliance with the 1933 Act.
"RELEASE DATE" means the date the Company makes available financial
results covering at least 30 days of combined operations of the Company and
Xxxxxxxx following the Closing Date.
"SELLER" means any person, including any Holder, participating in an
offering of any Registrable Securities of Buyer pursuant to this Agreement.
"SELLING EXPENSES" means all applicable transfer taxes and any fees of
accountants or other advisors for any Seller of the Registrable Securities being
registered.
"SHELF REGISTRATION" means a registration effected pursuant to a shelf
Registration Statement of Buyer, on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the Commission, all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein. A Registration Statement relating to a Shelf Registration shall be
referred to herein as the "SHELF REGISTRATION STATEMENT." The Shelf Registration
Statement shall be effected on Form S-3 or any successor form prescribed by the
Commission.
2. SHELF REGISTRATION RIGHTS
2.1 SHELF REGISTRATION
Subject to the limitations set forth elsewhere in this Section 2, by
December 31, 1999, Buyer shall file to effect qualification and registration of
the Registrable Securities under the Securities Act on a Form S-3 Registration
Statement (or any other shelf registration statement form for which it is then
eligible or which Buyer may have available for the registration of equity
securities) as a Shelf Registration. Buyer shall not be required to effect more
than one registration on Form S-3 pursuant to the provisions of this Section 2.
2.2 LIMITATION ON SHELF REGISTRATION OBLIGATION
Notwithstanding the provisions of Section 2.1, and subject to the
limitations described below in this Section 2 and Section 3, Buyer shall not be
obligated to effect the filing of a Registration Statement pursuant to this
Section 2 if Buyer shall furnish to the Holders a certificate signed by a Vice
President of Buyer stating that in the good faith judgment of the Board of
Directors of Buyer, it would not be in the best interests of Buyer and its
stockholders for such Registration Statement to be filed under the circumstances
specified in Section 2.3(b) for which Buyer could send a Suspension Notice, and
Buyer shall, subject to the limitations set forth in Section 2.3(d) hereof, have
the right to defer such filing or the effectiveness of such
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Registration Statement, for a period of not more than 90 days; PROVIDED,
HOWEVER, that Buyer may not utilize the right set forth in this Section 2.2 more
than once. Buyer shall use its reasonable efforts to keep a Registration
Statement filed pursuant to this Section 2 effective until November 30, 2000. If
Buyer utilizes the right set forth in this Section 2, the Registration Period
shall be extended for the number of days for which any filing was deferred as
specified in the notice; PROVIDED, HOWEVER, that the Registration Period need
not be extended pursuant to this subsection by a period of longer than six
months.
2.3 SELLING PROCEDURES; SUSPENSION
Each Holder of Registrable Securities agrees to give written notice to the
Buyer at least two (2) Business Days prior to any intended sale or distribution
of Registrable Securities under the Shelf Registration Statement referred to in
Section 2.1, which notice shall specify the date on which such Holder intends to
begin such sale or distribution. As soon as practicable after the date such
notice is received by Buyer, and in any event within two (2) Business Days after
such date, Buyer shall comply with either paragraph (a) or (b) below.
(a) Unless paragraph (b) below applies, Buyer shall (i) if deemed
necessary by Buyer, prepare and file with the Commission a post-effective
amendment to the Shelf Registration Statement or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that such Registration
Statement will not contain 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, and so that, as thereafter delivered to
purchasers of the Registrable Securities being sold thereunder, such Prospectus
will not contain 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, in light of the circumstances under which they were made, not
misleading; (ii) provide the Holders of the Registrable Securities who gave such
notice copies of any documents filed pursuant to Section 2.3(a)(i); and (iii)
inform each such Holder that Buyer has complied with its obligations in Section
2.3(a)(i) (or that, if Buyer has filed a post-effective amendment to the Shelf
Registration Statement which has not yet been declared effective, Buyer will
notify each such Holder to that effect, will use its reasonable efforts to
secure the effectiveness of such post-effective amendment and will immediately
notify each such Holder pursuant to Section 2.3(a)(i) hereof when the amendment
has become effective). Each Holder who has given notice of intention to
distribute such Holder's Registrable Securities in accordance with Section 2.3
hereof (a "NOTICE HOLDER") shall sell all or any of such Registrable Securities
pursuant to the Shelf Registration Statement and related Prospectus only during
the 90-day period commencing with the date on which Buyer gives notice, pursuant
to Section 2.3(a)(iii), that the Registration Statement and Prospectus may be
used for such purpose (such 90-day period is referred to as a "SELLING PERIOD").
The Notice Holders will not sell any Registrable Securities pursuant to such
Registration Statement or Prospectus after such Selling Period without giving a
new notice of intention to sell pursuant to
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Section 2.3 hereof and receiving a further notice from Buyer pursuant to Section
2.3(a)(iii) hereof or paragraph (b) below.
(b) In the event of (i) any request by the Commission or any other
federal or state governmental authority during the period of effectiveness of
the Shelf Registration Statement for amendments or supplements to a Shelf
Registration Statement or related Prospectus or for additional information; (ii)
the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Shelf Registration
Statement or the written threat or initiation of any proceedings for that
purpose; (iii) the receipt by Buyer of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) any event or circumstance
which necessitates the making of any changes in the Shelf Registration Statement
or Prospectus, or any document incorporated or deemed to be incorporated therein
by reference, so that, in the case of the Shelf Registration Statement, it will
not contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (v) that Buyer is in possession of material information that it
deems advisable not to disclose in a Registration Statement or (vi) that, in the
good faith judgment of Buyer's Board of Directors, it is advisable to suspend
use of the Prospectus (a "SUSPENSION") for a discrete period of time due to
pending corporate developments, public filings with the Commission or similar
events; then, subject to paragraph (d) below, Buyer shall deliver a certificate
in writing to the Notice Holders (the "SUSPENSION NOTICE") to the effect of the
foregoing and, upon receipt of such Suspension Notice, each such Notice Holder's
Selling Period will not commence until such Notice Holder's receipt of copies of
the supplemented or amended Prospectus provided for in Section 2.3(a)(i) hereof,
or until it is advised in writing by Buyer that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
(c) In the event any of the events or circumstances listed in the
foregoing paragraph (b) occur or exist after a Selling Period has commenced,
subject to paragraph (d) below, Buyer shall have the same right to suspend such
Selling Period by delivery of a Suspension Notice as Buyer would have had if the
Selling Period had not yet commenced, and any such suspension of a Selling
Period shall be deemed included within the meaning of the term "Suspension" for
all purposes under this Agreement.
(d) In the event of any Suspension, or any delay in effecting the
Shelf Registration under Section 2.2 above, Buyer will use its reasonable
efforts to ensure that the use of the Prospectus so suspended or delayed may be
commenced or resumed, as the case may be, and that any Selling Period so
suspended will commence or resume, as the case may be, as
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soon as practicable and, in the case of a pending development, filing or event
referred to in Section 2.3(b)(iv) or (v) hereof, as soon, in the judgment of
Buyer's Board of Directors, as disclosure of the material relating to such
pending development, filing or event would not have an adverse effect on Buyer's
ability to consummate the transaction, if any, to which such development, filing
or event relates. Notwithstanding any other provision of this Agreement, Buyer
shall have the right to cause a maximum of two (2) Suspensions, neither of which
may be within 30 days of the other, as provided above (including for this
purpose a delay in effecting the Shelf Registration pursuant to Section 2.2
above) during any 12-month period after the initial effective date of the Shelf
Registration Statement, and the total number of days in any 12-month period
during which a Suspension or Suspensions (including for this purpose a delay in
effecting the Shelf Registration Statement pursuant to Section 2.2 above) may be
in effect shall not exceed 90 days.
(e) Subject to the provisions of Section 2.2, Buyer will use its
reasonable efforts to maintain the effectiveness until November 30, 2000 of any
Registration Statement pursuant to which any of the Registrable Securities are
being offered. Buyer from time to time will amend or supplement such
Registration Statement and the Prospectus contained therein to the extent
necessary to comply with the 1933 Act and any applicable state securities
statute or regulation. Buyer will also provide each holder of Registrable
Securities with as many copies of the Prospectus contained in any such
Registration Statement as it may reasonably request.
3. RESTRICTIONS ON TRANSFER OF SHARES; RULE 144 AVAILABILITY
(a) The Holders agree, understand and acknowledge that the issuance of
the Registrable Securities to the Holders has not been, and, except as
contemplated in this Agreement, the sale or other disposition thereof by the
Holders will not be, registered under the 1933 Act or the securities laws of any
state and that the transfer, sale, disposal or assignment of such shares is
subject to restriction as set forth in Section 6.10 and 6.11 of the Purchase
Agreement and will bear the legends set forth in those Sections. The Holders
acknowledge that, except as expressly set forth in this Agreement, the Holders
have no right to require Buyer to cause the registration of any Registrable
Securities.
(b) With a view to making available to the Holders the benefits of
Rule 144 promulgated under the 1933 Act and Form S-3 and any other rule or
regulation of the Commission that may at any time after the Release Date permit
such Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the 1933 Act;
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(ii) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Act and
the 1934 Act; and
(iii) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 and of the 1933 Act and
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 such holder may reasonably request to avail
itself of any similar rule or regulation of the Commission
allowing it to sell any such securities without registration.
4. EXPENSES
Buyer will pay all Registration Expenses in connection with the
registration of Registrable Securities effected by Buyer pursuant to Section 2.
Holders of Registrable Securities registered pursuant to this Agreement shall
pay all Selling Expenses associated with such registration, with each Holder
bearing a pro rata portion of the Selling Expenses based upon the number of
Registrable Securities registered by each Holder.
5. EXPIRATION OF REGISTRATION RIGHTS
The obligations of Buyer under Section 2 of this Agreement to register the
Registrable Securities shall expire and terminate at such time as the
Shareholders shall be entitled or eligible to sell all such securities in the
United States or to a U.S. person (as defined in Regulation S under the 0000
Xxx) without restriction and without a need for the filing of a registration
statement under the 1933 Act. The obligations of Buyer under Section 2 of this
Agreement shall expire on November 30, 2000 (provided no stop transfer orders
are in place with the transfer agent).
6. REGISTRATION PROCEDURES
In connection with the registration of Registrable Securities under this
Agreement, and subject to the other provisions of this Agreement, Buyer shall:
(a) use its reasonable efforts to cause the Registration Statement
filed in accordance with Section 2 to become effective as soon as practicable
after the Release Date;
(b) 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 continuously
effective for the shorter of (i) the duration of its registration obligations
pursuant to Section 2, or (ii) until there are no
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Registrable Securities outstanding, and to comply with the provisions of the
1933 Act with respect to the disposition of the Registrable Securities;
(c) furnish to each Seller of such Registrable Securities such number
of copies of the Prospectus included in such Registration Statement as such
Seller may reasonably request in order to facilitate the sale or disposition of
such Registrable Securities;
(d) use its reasonable efforts to register or qualify all securities
covered by such Registration Statement under such other securities or "blue sky"
laws of such jurisdictions as each Seller shall reasonably request, and do any
and all other acts and things as may be reasonably necessary to enable such
Seller to consummate the disposition in such jurisdictions of its Registrable
Securities covered by such Registration Statement, except that Buyer shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in respect of doing business in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) notify each Seller of Registrable Securities covered by such
Registration Statement, at any time when a Prospectus relating thereto is
required to be delivered under the 1933 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 any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing or if it is
necessary to amend or supplement such Prospectus to comply with the law, and at
the request of any 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 purchasers of such Registrable
Securities or securities, such Prospectus, as amended or supplemented, will
comply with the law;
(f) use its best efforts to comply with all applicable rules and
regulations of the Commission;
(g) use its best efforts to qualify such securities for listing on the
Nasdaq National Market, and provide a transfer agent and registrar for such
Registrable Securities not later than the effective date of such Registration
Statement; and
(h) issue to any person to which any Holder of Registrable Securities
may sell such Registrable Securities in connection with such registration
certificates evidencing such Registrable Securities without any legend
restricting the transferability of the Registrable Securities.
Buyer will promptly amend or supplement such Registration Statement and the
Prospectus contained therein whenever and to the extent necessary to comply with
the 1933
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Act and any applicable state securities statute or regulation. Buyer will also
provide the Holder of Registrable Securities with as many copies of the
Prospectus contained in any such Registration Statement as it may reasonably
request.
7. 1934 ACT REGISTRATION
Buyer shall timely file with the Commission such information as the
Commission may require under Section 13 or 15(d) of the 1934 Act; and in such
event, Buyer shall use its best efforts to take all action pursuant to Rule
144(c) as may be required as a condition to the availability of Rule 144 under
the 1933 Act (or any successor exemptive rule hereinafter in effect) with
respect to such Common Stock. Buyer shall furnish to any holder of Registrable
Securities forthwith upon request (i) a written statement by Buyer as to its
compliance with the reporting requirements of Rule 144(c), (ii) a copy of the
most recent annual or quarterly report of Buyer as filed with the Commission,
and (iii) such other publicly-filed reports and documents as a holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a holder to sell any such Registrable Securities without
registration.
8. SHAREHOLDER INFORMATION
It shall be a condition precedent to the obligations of Buyer to take any
action pursuant to this Agreement that all Holders shall furnish to Buyer such
information regarding themselves, the Registrable Securities held by them and
the intended method of disposition of such Registrable Securities as shall be
reasonably required to effect the registration of their Registrable Securities
and to execute such documents in connection with such registration as Buyer may
reasonably request. In addition, each Holder agrees to dispose of any
Registrable Securities included in any registration only in accordance with the
plan of distribution described in the Registration Statement.
9. INDEMNIFICATION AND CONTRIBUTION
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) In the event of any registration of any Registrable Securities
under the 1933 Act pursuant to this Agreement, then to the extent permitted by
law, Buyer will indemnify and hold harmless each Seller and any of his agents,
and any underwriter (as defined in the 0000 Xxx) for such Seller and each
person, if any, who controls such Seller or underwriter within the meaning of
the 1933 Act or the 1934 Act, against any losses, claims, damages, liabilities
and expenses (including reasonable attorneys fees) (joint or several) to which
they may become subject under the 1933 Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, liabilities and expenses
(including reasonable attorneys fees (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(the following are collectively referred to as a
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"VIOLATION"): (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, in light of the circumstances under which they were made, not
misleading; or (iii) any violation or alleged violation by Buyer of the 1933
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law; and
Buyer will reimburse each such Seller, his agent, underwriter or controlling
person for any reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. Notwithstanding anything contained in this Agreement to the
contrary, the indemnity agreement contained in this Section 9 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 Buyer (which consent shall
not be unreasonably withheld, conditioned or delayed), nor shall Buyer 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 to Buyer
expressly for use in connection with such registration by any such Seller,
underwriter or controlling person.
(b) In the event of any registration of any Registrable Securities
under the 1933 Act pursuant to this Agreement, then to the extent permitted by
law, each Seller will indemnify and hold harmless Buyer, each of its officers,
directors, agents or employees, any underwriter (as defined in the 0000 Xxx) and
each person, if any, who controls Buyer or any underwriter for Buyer within the
meaning of the 1933 Act or the 1934 Act, and any other Seller or any of his
agents, underwriter or any person who controls such Seller within the meaning of
the 1933 Act or the 1934 Act, against any losses, claims, damages or liabilities
and expenses (including reasonable attorneys fees) (joint or several) to which
Buyer or any such director, officer, partner, agent, employee, controlling
person or underwriter, or other such Seller or agent, underwriter or controlling
person may become subject, under the 1933 Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, liabilities and expenses
(including reasonable attorneys fees) (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 such Seller expressly for use in connection
with such registration; and each such Seller will reimburse any reasonable legal
or other expenses reasonably incurred by Buyer or any such director, officer,
partner, agent, employee, controlling person or underwriter, other Seller,
agent, underwriter or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. Notwithstanding
anything contained in this Agreement to the contrary, the indemnity agreement
contained in this Section 9(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 Seller (which consent shall not be unreasonably
withheld, conditioned or delayed) provided further, that the aggregate liability
of each Seller in connection with any sale of Registrable Securities pursuant to
a Registration
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Statement in which a Violation occurred shall be limited to the net proceeds
from such sale received by such Seller.
(c) Promptly after receipt by an indemnified party under this Section
9 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 9, 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
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 differing or conflicting 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, to the extent prejudicial to its ability to
defend such action, shall relieve such indemnifying party of liability to the
indemnified party under this Section 9 to the extent of such prejudice, 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 9.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 9, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be entitled
to contribution to liabilities and expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying parties and the indemnified
parties, except to the extent that contribution is not permitted under Section
11(f) of the 1933 Act. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things, the
parties' relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and prevent
any statement or omission and any other equitable considerations appropriate
under the circumstances, including, without limitation, whether any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by Buyer, on
the one hand, or by the Seller, on the other hand. Buyer and the Seller of the
Registrable Securities covered by such Registration Statement agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation. No Seller of Registrable Securities covered by
such Registration Statement or person controlling such Seller shall be obligated
to make any contribution hereunder which in the aggregate exceeds the net
proceeds from the Registrable Securities sold by such Seller, less the aggregate
amount of any damages which such Seller and its controlling persons have
otherwise been required to pay in respect of the same claim or any substantially
similar claim. The obligations of such Sellers to contribute are
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several in proportion to their respective ownership of the Registrable
Securities covered by such Registration Statement and not joint.
10. NON-ASSIGNABILITY OF REGISTRATION RIGHTS
The rights to cause Buyer, or its successors or assigns, to register
Registrable Securities pursuant to this Agreement are reserved solely for the
use and benefit of the Holders and may not be assigned or transferred by the
Holders to any other person; PROVIDED, HOWEVER, that any Holder who is a natural
person may transfer Registrable Securities to any member of the immediate family
of a Holder who is a natural person, or any trust or other fiduciary arrangement
for the benefit of such family member.
11. MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS
Any provision of this Agreement may be amended and the observance thereof
may only be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of Buyer and the
Holders of at least two thirds of the Registrable Securities then outstanding.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each Holder of Registrable Securities at the time outstanding, each
future Holder of Registrable Securities, and Buyer.
11.2 NOTICES
Any notice required or permitted to be given hereunder shall be in writing
and shall be deemed given at the opening of business on the first Business Day
following the time (a) delivery is made, if by hand delivery, (b) the facsimile
is successfully transmitted, if by telecopier or facsimile machine, or (c) the
Business Day after such notice is deposited with a reputable overnight courier
service, postage prepaid, for next-day delivery, addressed as respectively set
forth below or to such other address as any party shall have previously
designated by such a notice:
To Buyer at:
Xxxxxxxxx Research, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile No.: (000) 000-0000
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With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
To any Shareholder:
To such Shareholder at the address
specified for such Shareholder on
SCHEDULE A hereto.
With a copy to:
Xxxxxxx Xxxxxx, Esq.
Olswang
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No.: 0000-000-0000
11.3 GOVERNING LAW
This Agreement shall for all purposes be governed by and construed in
accordance with the internal laws of The Commonwealth of Massachusetts with
respect to the enforceability of contracts and in accordance with the United
States securities laws with respect to matters involving securities laws
regarding the registration of the Registrable Shares, both without regard to
conflicts-of-laws principles. The parties hereto agree to submit to the
jurisdiction of the federal and state courts of The Commonwealth of
Massachusetts with respect to the breach or interpretation of this Agreement or
the enforcement of any and all rights, duties, liabilities, obligations, powers
and other relations between parties arising under this Agreement.
11.4 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be deemed to be excised from this
Agreement, and the remainder of this Agreement shall be interpreted as if such
provision were so excised and shall be enforceable in accordance with its
remaining terms.
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11.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
11.6 BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assignees of each of the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
XXXXXXXXX RESEARCH, INC.
/s/ Xxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
SHAREHOLDERS
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
______________________________________
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
______________________________________
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SCHEDULE A
SHAREHOLDER
-----------
1. Xxxx Xxxxxxxx
[Address]
2. Xxxxxxx Xxxxx
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