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Exhibit 10.12
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
March 14th, 2000 between SERANOVA, INC., a New Jersey corporation (the
"Company") and Ampal-American Israel Corporation (the "Initial Investor" and
together with any additional permitted investors who become signatories hereof
under the terms of Section 12 hereto and their respective permitted transferees
under Section 11 hereto, if any, being herein collectively referred to as the
"Investors").
WHEREAS, the Initial Investor is a party to a Stock Purchase Agreement,
dated as of the date hereof, between the Company and such Initial Investor (the
"Purchase Agreement"), and the Company and the Initial Investor have agreed to
enter into this Agreement in connection therewith;
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Certain Definitions. For purposes of this Agreement:
(a) "Common Stock" means the Common Stock, par value $.01 per
share, of the Company.
(b) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(c) "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any successor registration form under the
Securities Act.
(d) "Person" means any individual, partnership, corporation,
unincorporated organization or association, limited liability company, trust or
other firm or entity.
(e) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the declaration or
ordering of effectiveness of such registration statement or document.
(f) "Registrable Securities" means any shares of Common Stock
sold to an Investor pursuant to the Purchase Agreement or the terms of Section
12 hereof or transferred by the Initial Investor (or any additional permitted
investors under Section 12 hereto) to permitted transferees pursuant to Section
11 hereto; provided, however, that any Registrable Securities sold by the
Investors in a transaction in which such Investors' rights under this Agreement
are not assigned pursuant to Section 12 below shall cease to be Registrable
Securities from and after the time of such sale. Notwithstanding the foregoing,
securities shall only be treated as Registrable Securities if and so long as
they have not been (A) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Act" means the Securities Act of 1933, as
amended.
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(i) "Violation" means any of the following statements,
omissions or violations: (i) any untrue statement or alleged untrue statement of
a material fact contained in a registration statement under this Agreement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; or (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.
2. Request for Registration.
(a) If the Company shall receive, at any time after the
earlier of (i) five years after the date hereof or (ii) four (4) months after
the closing of the Spin-Off (as defined in the Purchase Agreement), from one or
more Investors cumulatively holding at least 30% of the Registrable Securities
not previously registered (the "Initiating Investors") a written request that
the Company file a registration statement under the Securities Act covering the
registration of at least 25% of the Registrable Securities not previously
registered (or any lesser number of shares if the anticipated aggregate offering
price, without regard to underwriting discounts and commissions, is reasonably
expected to exceed $5,000,000) (a "Qualifying Request"), then the Company shall,
subject to Section 2(b) below:
(i) Promptly give written notice of the proposed
registration to all other Investors (if any); and
(ii) As soon as practicable, use its reasonable
diligent efforts to effect such registration (including, without limitation,
filing post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws, and appropriate compliance with the
Securities Act) as would permit or facilitate the sale and distribution of the
portion of the Registrable Securities as are specified in the Qualifying
Request, together with the portion of the Registrable Securities of any Investor
joining in such Qualifying Request as are specified in a written request made by
such Investor(s) and received by the Company within 20 days after the written
notice from the Company described in clause (i) above is received by such
Investor(s).
(b) The Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 2: (i) after the
Company has initiated one such registration pursuant to this Section 2 (counting
for these purposes only registrations which have been declared or ordered
effective and pursuant to which securities have been sold), (ii) during any
period starting 60 days prior to the proposed filing date of a registration
statement of the Company and ending 180 days after the effective date of such
registration statement or (iii) if the Registrable Securities requested to be
included in a registration pursuant to this Section 2 may be registered on Form
S-3 pursuant to Section 4 hereof.
(c) Subject to Section 2(b) above, the Company shall file a
registration statement covering the Registrable Securities requested to be
registered pursuant to Section 2(a) as soon as practicable after receipt of the
Qualifying Request; provided, however, that if (i) in the good faith judgment of
the Board of Directors of the Company such registration would not be in the best
interests of the Company at such time, and (ii) the Company shall furnish to the
Initiating Investors a certificate signed by an authorized officer of the
Company to such effect, then the Company shall have the right to defer such
filing for a period of not more than 120 days after receipt of the Qualifying
Request; and, further provided, that the Company shall not defer its obligation
in this manner more than once in any twelve-month period.
(d) The registration statement required to be filed pursuant
to a Qualifying Request may, subject to the provisions of Section 2(e) hereof,
include other securities of the Company with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company.
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(e) If the Initiating Investors intend to distribute the
Registrable Securities covered by their Qualifying Request by means of an
underwriting, they shall so advise the Company as part of their Qualifying
Request made pursuant to Section 2(a), and the Company shall include such
information in its written notice referred to in Section 2(a)(i). In such event,
the right of any Investor to registration pursuant to this Section 2 shall be
conditioned upon such Investor's participation in such underwriting and the
inclusion of such Investor's Registrable Securities in the underwriting to the
extent provided herein. If the Company requests inclusion in any registration
pursuant to this Section 2 of securities being sold for its own account, or if
other Persons shall request inclusion in any registration pursuant to this
Section 2, the Initiating Investors shall, on behalf of all Investors, offer to
include such securities in the underwriting and may condition such offer on the
Company's and such Persons' acceptance of the applicable provisions of this
Agreement. The Company shall (together with all Investors and other Persons
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Registrable Securities held by the Initiating Investors, which
underwriters must be reasonably acceptable to the Company. Notwithstanding any
other provision of this Section 2, if the representative of the underwriters
advises the Initiating Investors and the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, then
the number of shares sought to be included by the Company and any Persons other
than the Investors requesting inclusion in such registration shall be reduced to
the extent required by the representative of the underwriters and the number of
shares of Registrable Securities to be included in such underwriting shall not
be reduced unless all such other securities are first entirely excluded;
thereafter, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 8 hereof. If a Person
who has requested inclusion in such registration as provided above does not
agree to the terms of any such underwriting, such Person shall be excluded
therefrom by written notice from the Company, and the securities so excluded
shall also be withdrawn from such registration. If shares are so withdrawn from
the registration and if the number of Registrable Securities to be included in
such registration was previously reduced as a result of marketing factors
pursuant to this Section 2(e), then the Company shall offer to all Investors who
have retained rights to include Registrable Securities in the registration the
right to include additional Registrable Securities (that were initially
requested to be included in such registration) in such registration in an
aggregate amount equal to the number of shares so withdrawn, with such shares to
be allocated among such Investors in accordance with Section 8.
3. Company Registration.
(a) Subject to Section 3(e) below, if at any time or times
after the date hereof the Company determines to register any of its equity
securities either for its own account or the account of a security holder or
holders exercising its or their demand registration rights, the Company will:
(i) Promptly give to each Investor written notice
thereof; and
(ii) Use its reasonable diligent efforts to include
in such registration (and any related qualifications under applicable blue sky
or other state securities laws and other compliance with the Securities Act),
except as set forth in Section 3(c) below, and in any underwriting involved
therein, all the Registrable Securities specified in a written request made by
any Investor and received by the Company within 20 days after the written notice
from the Company described in clause (i) above is received by such Investor.
Such written request may specify all or a part of an Investor's Registrable
Securities.
(b) If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Investors as a part of the written notice given pursuant to Section
3(a)(i) above. In such event, the right of any Investor to registration
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pursuant to this Section 3 shall be conditioned upon such Investor's
participation in such underwriting and the inclusion of such Investor's
Registrable Securities in the underwriting to the extent provided herein. All
Investors proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders of securities of the
Company that have exercised their registration rights to participate therein and
are distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
(c) Notwithstanding any other provision of this Section 3, if
the representative of the underwriters advises the Company in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the Company shall so advise all Investors holding Registrable
Securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated (i) first to the Company for securities being sold for its own account
and to security holders that have exercised their demand registration rights
with respect to such registration, (ii) then to all other holders of equity
securities of the Company included in such registration, including any
Investors, on a pro rata basis. If any Person does not agree to the terms of any
such underwriting, such Person shall be excluded therefrom by written notice
from the Company, and the securities so excluded shall also be withdrawn from
such registration.
(d) If shares are so withdrawn from the registration and if
the number of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to any Investors who have retained the right to include Registrable
Securities in the registration the right to include additional Registrable
Securities (that were initially requested to be included in such registration)
in such registration, provided that the number of shares of Registrable
Securities, and the other securities entitled to be included in such
registration in respect of such withdrawn shares, shall be allocated in
accordance with the first sentence of Section 3(c).
(e) This Section 3 shall not apply to a registration on any
registration form that does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities or to registrations relating solely to (i) any Company
employee benefit plan or (ii) transactions pursuant to Rule 145 or any other
similar rule promulgated under the Securities Act.
4. Registration on Form S-3.
(a) After the Company has qualified for the use of Form S-3,
in addition to the rights contained in the foregoing provisions of this
Agreement, the Investors holding at least 10% of the Registrable Securities not
previously registered shall have the right to request a registration on Form S-3
(such requests shall be in writing and shall state the number of Registrable
Securities to be sold by such Investors and the intended method of disposition).
As soon as practicable after receiving such request, the Company shall effect
such registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky or other state
securities laws, and appropriate compliance with the Securities Act) as would
permit or facilitate the sale and distribution of the Registrable Securities
requested to be included in such registration; provided, however, that the
Company shall not be obligated to effect, or take any action to effect, any such
registration if (i) Form S-3 is not then available for use in such offering;
(ii) the anticipated aggregate offering price, without regard to underwriting
discounts and commissions, is not reasonably expected to exceed $3,000,000;
(iii) the Company shall furnish to the requesting Investors the certification
described in Section 2(c) (but subject to the limitations set forth therein);
(iv) the Company shall have already completed two registrations on Form S-3
during the prior 12 months (counting for this purpose only registrations which
have been declared or ordered effective); (v) the sale of Registrable Securities
in such offering would occur in any
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jurisdiction in which the Company would be required to qualify to do business
(and in which it would not otherwise be required to qualify but for the sale of
such Registrable Securities) or to file a general consent to service of process;
or (vi) the sale of Registrable Securities in such offering would occur during
any period starting on the effective date of any registration statement of the
Company (other than such Form S-3) and ending 180 days after the effective date
of such registration statement.
(b) Regardless of whether any Investor has completed the sale
of its Registrable Securities covered by a Form S-3, if, at any time after the
effective date of such Form S-3, the Company notifies such Investor that such
Form S-3 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, then the
Company may require such Investor to cease such Investor's sales of Registrable
Securities covered by such Form S-3 until such time as the Company files an
amendment to such Form S-3 correcting such untrue statement or including such
material fact, which amendment shall be filed by the Company no later than 90
days after the date of the Company's notice given to such Investor under this
Section 4(b).
5. Obligations of the Company. Whenever required under this Agreement
to effect the registration of any Registrable Securities, the Company shall, as
soon as practicable:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable efforts to
cause such registration statement to become effective, and, upon the request of
any of the Investors holding Registrable Securities being registered thereunder,
keep such registration statement effective for up to 90 days or until the
Investors have completed the distribution referred to in such registration
statement, whichever occurs first; provided, however, that before filing such
registration statement or any amendment thereto, the Company will furnish to the
Investors holding Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed.
(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
Registrable Securities covered by such registration statement.
(c) Furnish to the Investors holding Registrable Securities
covered by such registration statement such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents as the Investors holding Registrable Securities covered by such
registration statement may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) 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 representative of the underwriters of such offering.
(e) Notify each Investor holding Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto 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
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required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(f) Notify each Investor holding Registrable Securities
covered by such registration statement: (i) when the registration statement has
become effective; (ii) when any post-effective amendment to the registration
statement becomes effective; and (iii) of any request by the SEC for any
amendment or supplement to the registration statement or prospectus or for
additional information.
(g) Notify each Investor holding Registrable Securities
covered by such registration statement if at any time the SEC should institute
or threaten to institute any proceedings for the purpose of issuing, or should
issue, a stop order suspending the effectiveness of such registration statement.
Upon the occurrence of any of the events mentioned in the preceding sentence,
the Company will use its reasonable efforts to prevent the issuance of any such
stop order or to obtain the withdrawal thereof as soon as reasonably possible.
The Company will advise each Investor holding Registrable Securities covered by
such registration statement promptly of any order or communication of any public
board or body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.
(h) As soon as practicable after the effective date of such
registration statement, and in any event within 16 months thereafter, have "made
generally available to its security holders" (within the meaning of Rule 158
under the Securities Act) an earnings statement (which need not be audited)
covering a period of at least 12 months beginning after the effective date of
such registration statement and otherwise complying with Section 11(a) of the
Securities Act.
6. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any Investor that such Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of such Registrable
Securities as shall be required to effect the registration of such Investor's
Registrable Securities.
7. Expenses of Demand Registration. All expenses, other than
underwriting discounts and commissions relating to Registrable Securities,
incurred in connection with registrations pursuant to this Agreement (for this
purpose only registrations which have been declared or ordered effective),
including, without limitation, all registration, filing and qualification fees,
printers' and accounting fees relating or apportionable thereto, the fees and
disbursements of one counsel for the security holders of the Company
participating in such registration up to a maximum amount of $15,000 and the
fees and disbursements of counsel to the Company shall be borne by the Company.
8. Allocation of Registration Opportunities. In any circumstance in
which all of the Registrable Securities requested to be included in a
registration on behalf of the Investors cannot be so included as a result of
limitations imposed by any underwriter or underwriters of the aggregate number
of Registrable Securities that may be so included, the number of Registrable
Securities that may be so included shall be allocated among the Investors
requesting inclusion pro rata on the basis of the number of Registrable
Securities that would be held by such Investors; provided, however, that if any
Investor does not request inclusion of the minimum number of shares of
Registrable Securities allocated to such Investor pursuant to the
above-described procedure, the remaining portion of such Investor's allocation
shall be reallocated among those requesting Investors whose allocations did not
satisfy their requests, pro rata on the basis of the number of Registrable
Securities that would be held by such Investors, and this procedure shall be
repeated until all of the Registrable Securities which may be included in the
registration on behalf of the requesting Investors have been so allocated.
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9. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Investor
and each Investor's officers and directors, any underwriter (as defined in the
Securities Act) for such Investor and each Person, if any, who controls (within
the meaning of the Securities Act or the Exchange Act) such Investor or
underwriter against any losses, claims, damages or liabilities, whether or not
involving a third party, to which they may become subject under the Securities
Act, the Exchange 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 a Violation by the Company (provided, however, that the Company
will not be required to indemnify any of the foregoing Persons on account of any
losses, claims, damages or liabilities arising out of or based upon a Violation
by the Company if and to the extent that such Violation was made in a
preliminary prospectus and was corrected in a subsequent prospectus that was
required by law to be delivered to the Person making the claim with respect to
which indemnification is sought hereunder (and such subsequent prospectus was
made available by the Company to permit delivery of such prospectus in a timely
manner) and such subsequent prospectus was not so delivered to such Person); and
the Company will pay to each indemnified party under this Section 9(a), as
incurred, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 9(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 to a particular
indemnified party for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation by the Company which
occurs in reliance upon and in conformity with written information furnished by
or on behalf of such indemnified party expressly for use in connection with any
registration.
(b) Each selling Investor will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each Person, if any, who controls (within the meaning of
the Securities Act or the Exchange Act) the Company, any underwriter (as defined
in the Securities Act), any other Investor or other Person selling securities
covered by such registration statement and each Person, if any, who controls
(within the meaning of the Securities Act or the Exchange Act) such underwriter
or other Investor or Person, against any losses, claims, damages or liabilities,
whether or not involving a third party, to which any of the foregoing Persons
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon a Violation by the selling
Investor, in each case to the extent that such Violation by the selling Investor
occurs in reliance upon and in conformity with written information furnished by
or on behalf of the indemnifying Investor expressly for use in connection with
any registration; and each indemnifying Investor will pay to each indemnified
party under this Section 9(b), as incurred, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that 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 indemnifying
Investor (which consent shall not be unreasonably withheld); and further
provided, that in no event shall the liability of any Investor under this
Section 9(b) exceed the net proceeds from the offering received by such
Investor.
(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 of such action, and
the indemnifying party shall have the right to participate in and, to the extent
the indemnifying party so desires, jointly with any
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other indemnifying party similarly noticed, to assume the defense of such action
with counsel reasonably satisfactory to the indemnified party. The failure to
deliver written notice to the indemnifying party within a reasonable time after
the commencement of any such action shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 9 except if, and only
to the extent that, the indemnifying party is actually prejudiced thereby; and
such failure 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) The obligations of the Company to any particular Investor
and of such Investor to the Company shall survive for a period of two (2) years
from the completion of any offering of Registrable Securities of such Investor
pursuant to the last registration statement under this Agreement in which such
Investor's Registrable Securities were included.
(e) If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person that was not guilty of fraudulent misrepresentation. Notwithstanding
anything to the contrary in this Section 9, no Investor shall be required,
pursuant to this Section 9, to contribute any amount in excess of the net
proceeds received by such Investor from the sale of Registrable Securities in
the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.
10. Termination. The rights of any Investor to request registration or
inclusion in any registration pursuant to this Agreement shall terminate upon
the earlier of: (i) three (3) years after the closing of the Spin-Off and (ii)
such time when Rule 144(k) or another similar exception under the Securities Act
is available for the sale of all of the Registrable Securities of the Investors
during any three-month period without registration; provided, however, that the
obligations of the parties contained in Section 9 hereof shall survive as
contemplated by Section 9(d).
11. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned in
whole or in part only by an Investor to one or more transferees or assignees
permitted under the Stockholders' Agreement dated as of the date hereof by and
among the Company, the Initial Investor and Intelligroup, Inc. (the
"Stockholders' Agreement"); provided that, in each case, as a condition to such
transfer or assignment, the transferring Investor shall give prior written
notice to the Company of such transfer or assignment (which notice shall set
forth the identity of the transferee or assignee) and such transferee or
assignee shall deliver to the Company a written instrument by which such
transferee or assignee agrees to be bound by the obligations imposed on the
transferring Investor under this Agreement, to the same extent as if such
transferee or assignee was a party hereto.
12. Additional Investors. The Initial Investor acknowledges and agrees
that: (i) following the date of this Agreement, the Company may sell additional
Common Stock (as defined in the Purchase Agreement) to other parties (the
"Additional Purchasers") on the same terms and conditions as are contained in
the Purchase Agreement, the Stockholders' Agreement and this Agreement,
including but not limited to under the terms of the Option Letter (as defined in
the Purchase Agreement), (ii) promptly
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following such sale, this Agreement may be amended to add such Additional
Purchasers of Common Stock as parties hereto or such Additional Purchasers may
enter into Registration Rights Agreements with the Company with terms and
conditions which are the same as the terms and conditions of this Agreement, and
(iii) following such actions, such Additional Purchasers of Common Stock, shall
be deemed "Investors" with the same registration and other rights hereunder as
the Initial Investor and their securities shall be deemed "Registrable
Securities" hereunder.
13. Changes in Registrable Securities. If, and as often as, there are
any changes in the Registrable Securities by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement as
a condition to any such merger or consolidation.
14. Further Assurances. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement.
15. Amendment; Waiver. Any term, covenant, agreement or condition of
this Agreement may be amended, and compliance therewith may be waived (either
generally or in a particular circumstance and either retroactively or
prospectively), (i) as to the Company, by a written instrument signed by the
Company, and (ii) as to the Investors, by one or more written instruments signed
by all the Investors. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon the Investors and the Company.
16. Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or (i)
forty-eight (48) hours after being deposited in the U.S. mail in the case of
mail sent within the United States and (ii) five (5) days after being deposited
in the mail in the case of mail sent to or from a location outside the United
States, as certified or registered mail, with postage prepaid, as follows:
If to the Company to:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: President
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to an Investor:
At the address set forth on the signature page hereof
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or at such other address or facsimile number as shall be designated by such
party in a notice to the other party provided in accordance with this Section
16.
17. Severability. In the event one or more of the provisions of this
Agreement should for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
18. Counterparts. This Agreement may be executed in any number of
counterparts, and by facsimile, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart, and all of
which together shall constitute one instrument.
19. Entire Agreement. This Agreement, the Stockholders' Agreement and
the Purchase Agreement constitute the entire agreement among the parties
relative to the specific subject matter hereof. Any previous agreement among the
parties relative to the specific subject matter hereof is superseded by this
Agreement, the Stockholders' Agreement and the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed and delivered as of the date first written above.
SERANOVA, INC.
By: /s/ Xxxx Xxxxx
_______________________________
Name:
Title:
INVESTOR
Ampal-American Israel Corporation
By: /s/ Xxx Xxxxxxxx
_______________________________
Name: Xxx Xxxxxxxx
Title: Secretary
Address: 0000 Xxx Xxxxxxxx
XX, XX 00000
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