REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of February 2, 2000 (this
"Agreement"), is made by and between TERA COMPUTER COMPANY, a Washington
corporation (the "Company"), and the party named on the signature page hereto
(the "Investor").
W I T N E S S E T H:
WHEREAS, in connection with the Purchase Agreement, dated as January 21,
2000, between the Investor and the Company (the "Purchase Agreement"), the
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue and sell to the Investor an aggregate of shares (the
"Shares") of Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, to induce the Investor to execute and deliver the Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Securities Act"), and applicable state securities laws with
respect to the Shares;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor
hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement.
2. Mandatory Registration for Resale.
(a) The Company shall prepare and, on or before 30 days after the
Closing Date, file with the Securities and Exchange Commission ("SEC") a
Registration Statement on Form S-3 (or, if Form S-3 is not then available, on
such form of Registration Statement as is then available to effect the
registration for resale of the Shares) , which covers the resale by the Investor
of the Shares and the resale by all other Investors of their respective Shares,
and any other securities that are exchange for such Shares (collectively, the
"Registrable Securities").
(b) The Company meets the requirements for the use of Form S-3 for
registration of the Registrable Securities for resale by the Investor. The
Company believes
that it may register all of the Registrable Securities under the Securities Act
on Form S-3. The Company shall file all reports required to be filed by the
Company with the SEC in a timely manner so as to maintain such eligibility for
the use of Form S-3.
3. Obligations of the Company. In connection with the registration of the
Registrable Securities pursuant to Section 2 hereof, as applicable, the Company
shall:
(a) use its best efforts to cause the Registration Statement required
to filed pursuant to Section 2(a) hereof to become effective as soon as possible
after such filing, and keep each Registration Statement effective pursuant to
Rule 415 at all times during the period from the Closing Date to the earliest of
(i) the date which is two years after the Closing Date, (ii) the date on which
the Investor may sell all of its Registrable Securities without registration
under the Securities Act pursuant to Rule 144, without restriction on the manner
of sale or the volume of securities which may be sold in any period and without
the requirement for the giving of any notice to, or the making of any filing
with, the SEC and (iii) the date on which the Investor no longer beneficially
owns any Registrable Securities (the "Registration Period"); submit to the SEC,
within five business days after the Company learns that no review of a
Registration Statement will be made by the staff of the SEC or that the staff of
the SEC has no further comments on the Registration Statement, as the case may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than five business days after the submission of
such request; notify the Investors of the effectiveness of such Registration
Statement on the date that the Company is advised by the SEC that the
Registration Statement has been declared effective; and the Company represents
and warrants to, and covenants and agrees with, the Investors that the
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein), at the time it is first filed with the SEC, at
the time it is ordered effective by the SEC and at all times during which it is
required to be effective hereunder (and each such amendment and supplement at
the time it is filed with the SEC and at all times during which it is available
for use in connection with the offer and sale of the Registrable Securities)
shall not contain any 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 in which they were made, not misleading;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection
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with the Registration Statement as may be necessary to keep such Registration
Statement effective at all times during the Registration Period;
(c) furnish to the Investor (i) upon request after the same is
prepared and publicly distributed, filed with the SEC or received by the
Company, one copy of the Registration Statement and any amendment thereto, each
preliminary prospectus and prospectus and each amendment or supplement thereto,
each letter written by or on behalf of the Company to the SEC or the staff of
the SEC and each item of written correspondence from the SEC or the staff of the
SEC relating to such Registration Statement (other than any portion of any
thereof that contains information for which the Company has sought confidential
treatment) and (ii) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents, as such Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Investor;
(d) use reasonable efforts to (i) register and qualify the Registrable
Securities covered by the Registration Statement under such securities or blue
sky laws of such jurisdictions as the Investor reasonably requests, (ii) prepare
and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof at all times during the
Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during the
Registration Period and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto (I) to qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (II) to subject itself to general taxation in any such
jurisdiction, (III) to file a general consent to service of process in any such
jurisdiction, (IV) to provide any undertakings that cause more than nominal
expense or burden to the Company or (V) to make any change in its articles of
incorporation or by-laws, which in each case the Board of Directors of the
Company determines to be contrary to the best interests of the Company and its
shareholders;
(e) as promptly as practicable after becoming aware of such event or
circumstance, notify each Investor of any event or circumstance of which the
Company has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a
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material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and use its best efforts promptly to prepare a supplement or
amendment to the Registration Statement to correct such untrue statement or
omission, file such supplement or amendment with the SEC at such time as shall
permit the Investors to sell Registrable Securities as promptly as practicable,
and deliver a number of copies of such supplement or amendment to each Investor
as such Investor may reasonably request. If such event is the conduct of
negotiations with respect to a transaction, the disclosure of which the Company
reasonably concludes would be detrimental to the Company (each, a "Negotiation
Event"), the Company shall be entitled, upon giving notice of a Negotiation
Event to each holder (the "Negotiation Notice") and upon the reasonable
determination of the Company, after consulting with counsel, that failure to
disclose the Negotiation Event would constitute an omission to state a material
fact required to be stated in the Registration Statement, to require the
Investor to suspend sales of the Common Stock pursuant to the Registration
Statement for a period of up to fifteen (15) days after the giving of the
Negotiation Notice; provided, however, that the Company shall not give more than
two (2) Negotiation Notices in any twelve-month period; and provided further
that, after the expiration of such fifteen (15) period, the Company hall take
all steps necessary to end such required suspension of sales, including by
filing an amendment or supplement to the Registration Statement;
(f) as promptly as practicable after becoming aware of such event,
notify each Investor who holds Registrable Securities being sold of the issuance
by the SEC of any stop order or other suspension of effectiveness of the
Registration Statement at the earliest possible time;
(g) make available for inspection by the Investor and its counsel or
other agents retained by any such Investor (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable the Investor to exercise its due diligence responsibility,
and cause the Company's officers, directors and employees to supply all
information that any Inspector reasonably may request for purposes of such due
diligence; provided, however, that each Inspector shall hold in confidence and
shall not make any disclosure (except to an Investor) of any Record or other
information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (ii) the release of such Records is ordered pursuant
to a subpoena or other
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order from a court or government body of competent jurisdiction or (iii) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement. The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and substance satisfactory to the Company)
with the Company with respect thereto, substantially in the form of this Section
3(g). The Investor agrees that it shall, upon learning that disclosure of such
Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow
the Company, at the Company's own expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential;
(h) use its best efforts to cause all the Registrable Securities
covered by the Registration Statement to be listed on Nasdaq or such other
principal securities market on which securities of the same class or series
issued by the Company are then listed or traded;
(i) if the Investor is deemed to be an underwriter under the
Securities Act, the Company shall, upon written request by the Investor, furnish
the Investor on the date of effectiveness of the Registration Statement (a) an
opinion, dated of such applicable date, from counsel representing the Company
addressed to the Investor and in form, scope and substance as is customarily
given in an underwritten public offering, and (b) a letter, dated as of such
applicable date, from the Company's independent certified public accountants
addressed to the Investor and in form, scope and substance as customarily given
to underwriters in an underwritten public offering;
(j) hold in confidence and not make any disclosure of any information
provided by the Investor to the Company and designated by the Investor as its
confidential information unless (i) the disclosure of such information is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such information is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction or (iii) the information has been made generally available to the
public other than by disclosure in violation of this Agreement;
(k) take all other actions necessary to comply with federal and any
applicable state securities laws in connection with the obligations of the
Company under this Agreement; and
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(l) take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of the Registrable Securities pursuant to
the Registration Statement.
4. Obligations of the Investor. In connection with the registration of the
Registrable Securities, the Investor shall have the following obligations:
(a) It is a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Investor that the Investor shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least six (6) days prior
to the first anticipated filing date of the Registration Statement, the Company
shall notify the Investor of the information the Company requires from the
Investor (the "Requested Information") if any of such Investor's Registrable
Securities are eligible for inclusion in the Registration Statement. If at least
one business day prior to the filing date the Company has not received the
Requested Information from the Investor (a "Non-Responsive Investor"), then the
Company may file the Registration Statement without including Registrable
Securities of such Non-Responsive Investor but shall not be relieved of its
obligation to file a Registration Statement with the SEC relating to the
Registrable Securities of such Non- Responsive Investor promptly after such
Non-Responsive Investor provides the Requested Information;
(b) The Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested thereby
in connection with the preparation and filing of the Registration Statement
hereunder, unless the Investor has notified the Company in writing of the
Investor's election to exclude all of its Registrable Securities from the
Registration Statement;
(c) The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(e) or
3(f), the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until theInvestor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed by
the Company, the Investor shall deliver to the Company (at
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the expense of the Company) or destroy (and deliver to the Company a certificate
of destruction) all copies in the Investor's possession of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice, except that each Investor may retain one copy of such prospectus solely
for its files; and
(d) The Investor agrees that it will not effect any disposition of the
Registrable Securities except as contemplated in the Registration Statement or
as is otherwise in compliance with applicable securities laws and that it will
promptly notify the Company of any material change in the information set forth
in the Registration Statement regarding such Investor's plan of distribution.
The Investor agrees (a) to notify the Company in writing in the event that such
Investor enters into any material agreement with a broker or a dealer for the
sale of the Registrable Securities through a block trade, special offering or
exchange distribution and (b) in connection with such agreement, to provide to
the Company in writing the information necessary to enable the Company to
prepare, at the Company's sole cost and expense, any supplemental prospectus
pursuant to Rule 424(c) under the Securities Act which is required with respect
to such transaction. In connection with any sale of Registrable Securities which
is made pursuant to the Registration Statement, the Investor shall comply with
the prospectus delivery requirements of the Securities Act.
5. Expenses of Registration. All reasonable expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration, listing, qualification, and filing fees, printing and accounting
expenses, fees and disbursements of counsel for the Company, shall be borne by
the Company; provided, however, that the Investor shall pay all brokerage and
selling commissions and associated costs pertaining to the sale of its
Registrable Securities.
6. Indemnification. In the event any Registrable Securities are included in
a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor and its directors, officers, members, employees,
partners, agents and each person who controls the Investor within the meaning of
the Securities Act or the Exchange Act (each, an "Indemnified Person"), against
any losses, claims, damages, liabilities or expenses (joint or several) incurred
(collectively, "Claims") to which any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect
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thereof) arise out of or are based upon any of the following statements,
omissions or violations in the Registration Statement, or any post-effective
amendment thereof, or any prospectus included therein: (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or 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, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act, the Exchange
Act or any state securities law (the matters in the foregoing clauses (i)
through (iii) being, collectively, "Violations"). Subject to the restrictions
set forth in Section 6(c) with respect to the number of legal counsel, the
Company shall reimburse the Indemnified Persons promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (I) shall not apply to
a Claim arising out of or based upon a Violation which occurs in reliance upon
and in conformity with information furnished in writing to the Company by any
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement, the prospectus or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(c) hereof; (II) with respect to any preliminary prospectus
shall not inure to the benefit of any such person from whom the person asserting
any such Claim purchased the Registrable Securities that are the subject thereof
(or to the benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected in the prospectus, as then amended or supplemented, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; and (III) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall remain in
full force and effect regardless of any
8
investigation made by or on behalf of the Indemnified Person.
(b) In connection with any Registration Statement in which the
Investor is participating, the Investor agrees to defend, indemnify and hold
harmless, to the same extent and in the same manner set forth in Section 6(a),
the Company, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act, any other shareholder selling
securities pursuant to the Registration Statement or any of its directors or
officers or any person who controls such shareholder within the meaning of the
Securities Act or the Exchange Act (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim to which any of
them may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is 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 to the
Company by such Investor expressly for use in connection with such Registration
Statement; and such Investor will reimburse any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such Claim; provided, however, that the indemnity agreement contained in this
Section 6(b) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Investor, which
consent shall not be unreasonably withheld. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented. The obligation of the Investor
under this Section 6(b) shall not exceed the purchase price paid by the Investor
for the Registrable Securities.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, 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
control of the defense thereof with counsel selected by the indemnifying party
but reasonably acceptable to the
9
Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that an Indemnified Person or Indemnified Party shall have the right to
retain its own counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. In such event, the Company shall pay for only one separate legal
counsel for the Investors; such legal counsel shall be selected by the Investors
holding a majority in interest of the Registrable Securities included in the
Registration Statement to which the Claim relates. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
7. Contribution. To the extent any indemnification by an indemnifying party
is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that (a) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6, (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation and (c)
contribution by any seller of Registrable Securities shall be limited in amount
to the amount by which the net amount of proceeds received by such seller from
the sale of such Registrable Securities exceeds the purchase price paid by such
seller for such Registrable Securities.
8. Reports under Exchange Act. With a view to making available to the
Investors the benefits of Rule 144, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
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(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company and
(iii) such other information as may be reasonably requested to permit the
Investors to sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investor to any transferee who (1) holds, or upon
such assignment will hold, at least twenty percent (20%) of the Registrable
Securities or (2) is an affiliate of such Investor, provided in the case of (1)
and (2), (a) the Investor agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (b) the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee and (ii) the
securities with respect to which such registration rights are being transferred
or assigned; (c) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted under
the securities act and applicable state securities laws; (d) at or before the
time the Company received the written notice contemplated by clause (b) of this
sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein; (e) such transfer shall have
been made in accordance with the applicable provisions of the Purchase
Agreement; (f) such transferee shall be an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act but shall not be a
broker-dealer or a member of the National Association of Securities Dealers,
Inc.; and (g) in the event the assignment occurs subsequent to the date of
effectiveness of the Registration Statement required to be filed pursuant to
Section 2(a), such assignee or transferee agrees to pay all reasonable expenses
of amending or supplementing such Registration Statement to reflect such
assignment. In connection with any such transfer the Company shall promptly
after such assignment take such actions as shall be reasonable required for the
Registration Statement and related prospectus to be available for use by such
transferee for sales of the Registrable Securities in
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respect of which the rights to registration have been assigned.
10. Amendment of Registration Rights. Any provision of this Agreement may
be 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. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon the Investor
and the Company.
11. Miscellaneous.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
(by hand or courier) or delivered by facsimile: (i) if to the Company, at Tera
Computer Company, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000-0000, Attention: Chief Executive Officer, facsimile No. (000) 000-0000,
with a copy to Stoel Rives LLP, Xxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxx, facsimile no. (000) 000-0000;
and (ii) if to the Investor at its addresses set forth on the Purchase
Agreement; or at such other address as each such party furnishes by notice given
in accordance with this Section 11(b), and shall be effective, when personally
delivered, upon receipt, and when sent by facsimile, upon receipt of
confirmation of successful transmission.
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of Washington applicable to agreements
made and to be performed entirely within such State. In the event that any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any provision hereof which may prove invalid
or unenforceable under any law shall not
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affect the validity or enforceability of any other provision hereof.
(e) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
(f) This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by telephone line facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their respective officers thereunto duly authorized as of day and year first
above written.
TERA COMPUTER COMPANY
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
INVESTOR
Name:
-----------------------------------
By:
--------------------------------
Title:
-----------------------------
Address:
--------------------------------
--------------------------------
--------------------------------
Telephone:
------------------------------
Facsimile:
------------------------------
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Schedule to Exhibit 10.1
Schedule of Parties to Registration Rights Agreement
Banca del Gottardo
Castle Creek Technology Partners LLC
Xxxxxxx Xxxxx Xxxxxxx
Cranshire Capital, L.P.
EDJ Limited
Xxxx X. Xxxxxxxx
Xxxxxx Family Partnership
Xxxxxx International, X.X.
Xxxxxx Partners, X.X.
Xxxxxx Select Growth, L.P.
Headwater Holdings, LLC
Xxxxxxx Xxxx
JMG Capital Partners, L.P.
JMG Triton Offshore Fund Ltd.
Xxxx Xxxxxxxxxx
Xxxxxxxxxxx X. Xxxxxxx Living Trust
MDB Capital Group, LLC
Montrose Investments Ltd.
Nob Hill Capital Associates, L.P.
Nob Hill Capital Partners, L.P.
Xxxxxxx X. Xxxx
Xxxxxxx Xxxxx
Xxxx X. Xxxxxxx aka The Shemano Group Investment Account
Xxxxx Xxxxxxxxx
Strong River Investments
Trans-Union Group, Inc.
Xxxxxxx Partners, L.P.
Von Graffenried AG Privatbank
