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EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of this
_____ day of July, 2001, by and among Xxxxxxx.xxx Corporation, a Washington
corporation (together with any predecessors or successors thereto, the
"Company"), and the investors named on the signature page hereto (together with
their successors and assigns, collectively the "Investors," and each
individually an "Investor").
RECITALS
WHEREAS, the Investors are acquiring an aggregate of up to __________
shares of the Company's Common Stock pursuant to that certain Amended and
Restated Agreement and Plan of Merger dated May 16, 2001, by and among the
Company, X.X.X. Automation, Inc., a California corporation, and the Investors
(the "Merger Agreement"); and
WHEREAS, the execution and delivery of this Agreement is a condition of the
Merger Agreement, and the Company desires to grant registration rights to the
Investors;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Company and the Investors hereby agree as follows:
AGREEMENT
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I. DEFINITIONS. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE
MEANINGS SET FORTH BELOW:
A. The term "Common Stock" shall mean the common stock, no par value, of
the Company;
B. The term "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to
time;
C. The term "Holder" shall mean any Investor who holds Registrable
Securities and any holder of Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with the terms and conditions hereof;
D. The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of effectiveness of such
registration statement;
E. The term "Registrable Securities" shall mean the shares of Common Stock
issued to Investors pursuant to the Merger Agreement, including any shares
issued by way of a stock dividend or stock split or in connection with a
combination of such shares; provided, however, that any Common Stock that
is sold in a registered sale pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144 thereunder, or
that may be sold without restriction as to volume or otherwise pursuant to
Rule 144 under the Securities Act (as confirmed by an unqualified opinion
of counsel to the Company), shall not be deemed Registrable Securities; and
F. The term "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to
time.
II. COMPANY REGISTRATION.
A. Subject to Section 2(e) below, if at any time or times after the date
hereof the Company shall determine to register any of its equity securities
either for its own account or the account of a security holder or holders
exercising their demand registration rights, the Company will:
1. Promptly give to each Holder written notice thereof; and
2. Use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except as set
forth in Section 2(c) below, and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests, made by any
Holder and received by the Company within 15 days after the written notice from
the Company described in (i) above is mailed or delivered by the Company. Such
written request may specify all or a part of a Holder's Registrable Securities.
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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 Holders as a part of the written notice given pursuant to
Section 2(a)(i) above. In such event, the right of any Holder to
registration pursuant to this Section 2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders of
securities of the Company with registration rights to participate therein
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 2, if the
representative of the underwriters in good faith advises the Company in
writing that marketing factors require a limitation on the number of shares
to be underwritten, the representative may (subject to the limitation set
forth below) exclude all Registrable Securities from, or limit the number
of Registrable Securities to be included in, the registration and
underwriting. The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting shall be
allocated first to the Company for securities being sold for its own
account and thereafter as set forth in Section 10. If any person does not
agree to the terms of any such underwriting, he, she or it shall be
excluded therefrom by written notice from the Company or the underwriter.
Any Registrable Securities or other securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
D. If shares are so withdrawn from the registration or if the number of
shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors and is then
subsequently increased, the Company shall then offer to all persons who
have retained the right to include securities in the registration the right
to include additional securities in the registration in an aggregate amount
equal to the number of shares so withdrawn, with such shares to be
allocated among the persons requesting additional inclusion in accordance
with Section 10 hereof.
E. This Section 2 shall not apply to a registration on any registration
form that does not permit secondary sales or to registrations relating
solely to (i) employee benefit plans, (ii) transactions pursuant to Rule
145 or any other similar rule promulgated under the Securities Act or (iii)
securities issued in connection with mergers with or acquisitions of other
corporations by the Company.
III. EXPENSES. IN THE CASE OF ANY REGISTRATION UNDER SECTION 2 HEREOF, THE
COMPANY SHALL BEAR ALL COSTS AND EXPENSES OF EACH SUCH REGISTRATION,
INCLUDING, BUT NOT LIMITED TO, PRINTING, LEGAL AND ACCOUNTING EXPENSES,
SECURITIES AND EXCHANGE COMMISSION ("SEC") FILING FEES AND "BLUE SKY" FEES
AND EXPENSES (THE "REGISTRATION EXPENSES") AND THE REASONABLE FEES FOR
COUNSEL OF THE HOLDERS; PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE NO
OBLIGATION TO PAY OR OTHERWISE BEAR (i) ANY PORTION OF THE FEES OR
DISBURSEMENTS OF MORE THAN ONE COUNSEL FOR THE SELLING HOLDERS OF
REGISTRABLE SECURITIES IN CONNECTION WITH THE REGISTRATION OF THEIR
REGISTRABLE SECURITIES OR (ii) ANY PORTION OF THE UNDERWRITER'S COMMISSIONS
OR DISCOUNTS ATTRIBUTABLE TO THE REGISTRABLE SECURITIES BEING OFFERED AND
SOLD BY THE HOLDERS OF REGISTRABLE SECURITIES.
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IV. OBLIGATIONS OF THE COMPANY. IN THE CASE OF EACH REGISTRATION EFFECTED BY
THE COMPANY PURSUANT TO THIS AGREEMENT, THE COMPANY WILL KEEP EACH HOLDER
ADVISED IN WRITING AS TO THE INITIATION OF EACH REGISTRATION AND AS TO THE
COMPLETION THEREOF. AT ITS EXPENSE, THE COMPANY WILL USE ITS BEST EFFORTS
TO:
A. Keep such registration effective for a period of 60 days or until the
Holder or Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
B. Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement;
C. Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a
Holder from time to time may reasonably request;
D. 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 Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete in
the light of the circumstances then existing, and at the request of any
such seller, prepare and furnish to such seller a reasonable number of
copies of a supplement or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
shares, such prospectus shall not include 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 not misleading or
incomplete in the light to the circumstances then existing;
E. Enter into any reasonable underwriting agreement required by the
proposed underwriter, if any, in such form and containing such terms as are
customary; provided, however, that no Holder shall be required to make any
representations or warranties other than with respect to its title to the
Registrable Securities and any written information provided by the Holder
to the Company, and if the underwriter requires that representations or
warranties be made and that indemnification be provided, the Company shall
make all such representations and warranties and provide all such
indemnities, including, without limitation, in respect of the Company's
business, operations and financial information and the disclosures relating
thereto in the prospectus;
F. Use its best efforts to register or qualify the securities covered by
said registration statement under the securities or "blue sky" laws of such
jurisdictions as any selling Holder may reasonably request, provided that
the Company shall not be required to register or qualify the securities in
any jurisdictions which require it to qualify to do business therein;
G. Cause all such Registrable Securities to be listed on each securities
exchange or quotation system on which similar securities issued by the
Company are then listed or quoted;
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H. Otherwise use its best efforts to comply with the securities laws of the
United States and other applicable jurisdictions and all applicable rules
and regulations of the SEC and comparable governmental agencies in other
applicable jurisdictions and make generally available to its shareholders,
in each case as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement of the Company
which will satisfy the provisions of Section 11(a) of the Securities Act;
and
I. Otherwise cooperate with the underwriter or underwriters, the Commission
and other regulatory agencies and take all actions and execute and deliver
or cause to be executed and delivered all documents necessary to effect the
registration of any Registrable Securities under this Agreement.
V. SUSPENSION. IN THE CASE OF A REGISTRATION FOR THE SALE OF REGISTRABLE
SECURITIES, UPON RECEIPT OF ANY NOTICE (A "SUSPENSION NOTICE") FROM THE
COMPANY OF THE HAPPENING OF ANY EVENT WHICH MAKES ANY STATEMENT MADE IN THE
REGISTRATION STATEMENT OR RELATED PROSPECTUS UNTRUE OR WHICH REQUIRES THE
MAKING OF ANY CHANGES IN SUCH REGISTRATION STATEMENT OR PROSPECTUS SO THAT
THEY WILL NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE ANY 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, EACH HOLDER OF REGISTRABLE SECURITIES REGISTERED UNDER
SUCH REGISTRATION STATEMENT SHALL FORTHWITH DISCONTINUE DISPOSITION OF SUCH
REGISTRABLE SECURITIES PURSUANT TO SUCH REGISTRATION STATEMENT UNTIL SUCH
HOLDER'S RECEIPT OF THE COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS OR
UNTIL IT IS ADVISED IN WRITING (THE "ADVICE") BY THE COMPANY THAT THE USE
OF THE PROSPECTUS MAY BE RESUMED, AND HAS RECEIVED COPIES OF ANY ADDITIONAL
OR SUPPLEMENTAL FILINGS WHICH ARE INCORPORATED BY REFERENCE IN THE
PROSPECTUS.
VI. INDEMNIFICATION.
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A. Incident to any registration statement referred to herein, the Company
will indemnify and hold harmless each Holder who offers or sells any such
Registrable Securities in connection with such registration statement
(including its partners (including partners of partners and shareholders of
any such partners), and directors, officers, employees and agents of any of
them (a "Selling Holder"), and each person who controls any of them within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (a "Controlling Person")), from and against any and all
losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, as the same are incurred), to which they,
or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out
of or are based on (i) any untrue statement or alleged untrue statement of
a material fact contained in such registration statement (including any
related preliminary or definitive prospectus, or any amendment or
supplement to such registration statement or prospectus), (ii) any omission
or alleged omission to state in such document a material fact required to
be stated in it or necessary to make the statements in it not misleading,
or (iii) any violation by the Company of the Securities Act, any state
securities or "blue sky" laws or any rule or regulation thereunder in
connection with such registration; provided, however, that the Company will
not be liable to the extent that such loss, claim, damage, expense or
liability arises from and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity
with information furnished in writing to the Company by such underwriter,
Selling Holder or Controlling Person expressly for use in such registration
statement. With respect to such untrue statement or omission or alleged
untrue statement or omission in the information furnished in writing to the
Company by such Selling Holder expressly for use in such registration
statement, such Selling Holder will indemnify and hold harmless each
underwriter, the Company (including its directors, officers, employees and
agents), each other Holder (including its partners (including partners of
partners and shareholders of such partners) and directors, officers,
employees and agents of any of them, and each person who controls any of
them within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act)), from and against any and all losses, claims,
damages, expenses and liabilities, joint or several, to which they, or any
of them, may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or
otherwise to the same extent provided in the immediately preceding
sentence. In no event, however, shall the liability of a Selling Holder for
indemnification under this Section 6(a) exceed the dollar amount of the
proceeds received by such Selling Holder from its sale of Registrable
Securities under such registration statement unless such liability arises
out of or is based on the willful misconduct of such Selling Holder.
B. The foregoing indemnity provisions are subject to the condition that,
insofar as they relate to any violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC
at the time the registration statement in question becomes effective or in
the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"Final Prospectus"), such indemnity provisions shall not inure to the
benefit of any person if a copy of the Final Prospectus was furnished to
the indemnified party and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act.
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C. If the indemnification provided for in Section 6(a) above for any reason
is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this
Section 6, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company, the other Selling Holders and the underwriters from the
offering of the Registrable Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, the other
Selling Holders and the underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Selling Holders and the
underwriters shall be deemed to be in the same respective proportions that
the net proceeds from the offering (before deducting expenses) received by
the Company and the Selling Holders and the underwriting discount received
by the underwriters, in each case as set forth in the table on the cover
page of the applicable prospectus, bear to the aggregate public offering
price of the Registrable Securities. The relative fault of the Company, the
Selling Holders and the underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Holders or the
underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6(c) were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. In no event, however, shall a Selling Holder be required to
contribute any amount under this Section 6(c) in excess of the proceeds received
by such Selling Holder from its sale of Registrable Securities under such
registration statement unless such liability arises out of or is based on the
willful misconduct of such Selling Holder. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
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D. Promptly after receipt by the indemnified party under this Section 6 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 the 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, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however, that
the 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
opinion of counsel for the indemnifying party, representation of such
indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding.
E. The amount paid by an indemnifying party or payable to an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in this Section 6 shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 6 will remain in full force and
effect regardless of any investigation made by or on behalf of the
indemnified parties or any officer, director, employee, agent or
controlling person of the indemnified parties.
VII. INFORMATION BY HOLDER. EACH HOLDER OF REGISTRABLE SECURITIES SHALL FURNISH
TO THE COMPANY SUCH INFORMATION REGARDING SUCH HOLDER AND THE DISTRIBUTION
PROPOSED BY SUCH HOLDER AS THE COMPANY MAY REASONABLY REQUEST IN WRITING
AND AS SHALL BE REASONABLY REQUIRED IN CONNECTION WITH ANY REGISTRATION,
QUALIFICATION OR COMPLIANCE REFERRED TO IN THIS AGREEMENT. IF A HOLDER
REFUSES TO PROVIDE THE COMPANY WITH ANY OF SUCH INFORMATION, THE COMPANY
MAY EXCLUDE SUCH HOLDER'S REGISTRABLE SECURITIES FROM THE REGISTRATION.
VIII. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. THE REGISTRATION RIGHTS OF
THE HOLDERS OF REGISTRABLE SECURITIES UNDER THIS AGREEMENT MAY NOT BE
TRANSFERRED OR ASSIGNED BY ANY HOLDER.
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IX. MARKET STAND-OFF AGREEMENT. IN CONNECTION WITH ANY UNDERWRITTEN PUBLIC
OFFERING BY THE COMPANY, THE HOLDERS, IF REQUESTED IN GOOD FAITH BY THE
COMPANY AND THE MANAGING UNDERWRITER OF THE COMPANY'S SECURITIES, SHALL
AGREE NOT TO SELL OR OTHERWISE TRANSFER OR DISPOSE OF ANY SECURITIES OF THE
COMPANY HELD BY THEM (EXCEPT FOR ANY SECURITIES SOLD PURSUANT TO SUCH
REGISTRATION STATEMENT) FOR A PERIOD FOLLOWING THE EFFECTIVE DATE OF THE
APPLICABLE REGISTRATION STATEMENT THAT IN NO EVENT SHALL EXCEED 180 DAYS.
NOTWITHSTANDING THE FOREGOING, SUCH AN AGREEMENT SHALL NOT BE REQUIRED
UNLESS ALL OF THE OFFICERS AND DIRECTORS AND FIVE PERCENT (5%) OR GREATER
SHAREHOLDERS OF THE COMPANY AND ALL OTHER PERSONS WITH REGISTRATION RIGHTS
ENTER INTO SIMILAR AGREEMENTS. IN ORDER TO ENFORCE THE FOREGOING, THE
COMPANY MAY IMPOSE STOP-TRANSFER INSTRUCTIONS WITH RESPECT TO THE
REGISTRABLE SECURITIES OF EACH HOLDER (AND THE SHARES OF SECURITIES OF
EVERY OTHER PERSON SUBJECT TO THE FOREGOING RESTRICTION) UNTIL THE END OF
SUCH PERIOD.
X. ALLOCATION OF REGISTRATION OPPORTUNITIES. IN ANY CIRCUMSTANCE IN WHICH ALL
OF THE REGISTRABLE SECURITIES AND OTHER SHARES OF COMMON STOCK OF THE
COMPANY WITH REGISTRATION RIGHTS (THE "OTHER SHARES") REQUESTED TO BE
INCLUDED IN A REGISTRATION ON BEHALF OF THE HOLDERS OR OTHER SELLING
SHAREHOLDERS CANNOT BE SO INCLUDED AS A RESULT OF LIMITATIONS OF THE
AGGREGATE NUMBER OF SHARES OF REGISTRABLE SECURITIES AND OTHER SHARES THAT
MAY BE SO INCLUDED, THE NUMBER OF SHARES OF REGISTRABLE SECURITIES AND
OTHER SHARES THAT MAY BE SO INCLUDED SHALL BE ALLOCATED AMONG THE HOLDERS
AND OTHER SELLING SHAREHOLDERS REQUESTING INCLUSION OF SHARES PRO RATA ON
THE BASIS OF THE NUMBER OF SHARES OF REGISTRABLE SECURITIES AND OTHER
SHARES THAT WOULD BE HELD BY SUCH HOLDERS AND OTHER SELLING SHAREHOLDERS;
PROVIDED, HOWEVER, THAT IF ANY HOLDER OR OTHER SELLING SHAREHOLDER DOES NOT
REQUEST INCLUSION OF THE MINIMUM NUMBER OF SHARES OF REGISTRABLE SECURITIES
AND OTHER SHARES ALLOCATED TO HIM, HER OR IT PURSUANT TO THE
ABOVE-DESCRIBED PROCEDURE, THE REMAINING PORTION OF HIS, HER OR ITS
ALLOCATION SHALL BE REALLOCATED AMONG THOSE REQUESTING HOLDERS AND OTHER
SELLING SHAREHOLDERS WHOSE ALLOCATIONS DID NOT SATISFY THEIR REQUESTS PRO
RATA ON THE BASIS OF THE NUMBER OF SHARES OF REGISTRABLE SECURITIES AND
OTHER SHARES THAT WOULD BE HELD BY SUCH HOLDERS AND OTHER SELLING
SHAREHOLDERS, ASSUMING CONVERSION, AND THIS PROCEDURE SHALL BE REPEATED
UNTIL ALL OF THE SHARES OF REGISTRABLE SECURITIES AND OTHER SHARES WHICH
MAY BE INCLUDED IN THE REGISTRATION ON BEHALF OF THE HOLDERS AND OTHER
SELLING SHAREHOLDERS HAVE BEEN SO ALLOCATED. THE COMPANY SHALL NOT LIMIT
THE NUMBER OF REGISTRABLE SECURITIES TO BE INCLUDED IN A REGISTRATION
PURSUANT TO THIS AGREEMENT IN ORDER TO INCLUDE SHARES HELD BY SHAREHOLDERS
WITH NO REGISTRATION RIGHTS.
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XI. TERMINATION OF REGISTRATION RIGHTS. THE RIGHTS OF ANY HOLDER TO REQUEST
REGISTRATION OR INCLUSION IN ANY REGISTRATION PURSUANT TO THIS AGREEMENT
SHALL TERMINATE UPON THE EARLIER OF (i) MARCH 20, 2004 OR (II) ON SUCH DATE
AS ALL SHARES OF REGISTRABLE SECURITIES HELD OR ENTITLED TO BE HELD UPON
CONVERSION BY SUCH HOLDER MAY IMMEDIATELY BE SOLD UNDER RULE 144 UNDER THE
SECURITIES ACT DURING ANY 90-DAY PERIOD.
XII. MISCELLANEOUS.
A. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws ---------------------- of the State of
New York, including, without limitation, Title 14, Section 5-1401 of New
York General Obligations Law, without giving effect to any other choice of
law or conflict of law provision or rule (whether of the State of New York
or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
B. Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon,
the successors, assigns, heirs, executors and administrators of the parties
hereto.
C. Entire Agreement; Amendment; Waiver. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to
the subjects hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument
signed by the Company and the Holders of at least a majority of the then
outstanding Registrable Securities, and any such amendment, waiver,
discharge or termination shall be binding on all the Holders.
D. Notices. Any notice or demand which is required or provided to be given
under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand, telecopy, telex or other
method of facsimile, or five (5) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested, or
two (2) days after being sent by overnight delivery providing receipt of
delivery, to the following addresses:
If to the Company to:
Xxxxxxx.xxx Corporation
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: President and Chief Executive Officer
if to an Investor, at its mailing address as shown on the signature page hereto,
or at any other address designated by the Investors to the Company in writing.
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E. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any Holder upon any breach or default of the Company
under this Agreement shall impair any such rights, power or remedy of such
Holder, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default therefore or
thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of any Holder of any breach or default under this
Agreement or any waiver on the part of any Holder of any provisions or
conditions of this Agreement must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any Holder,
shall be cumulative and not alternative.
F. Rights; Remedies; Separability. Unless otherwise expressly provided
herein, a Holder's rights hereunder are several rights, not rights jointly
held with any of the other Holders. It is specifically understood and
agreed that any breach of the provisions of this Agreement by any person
subject hereto will result in irreparable injury to the other parties
hereto, that the remedy at law alone will be an inadequate remedy for such
breach, and that, in addition to any other remedies which they may have,
such other parties may enforce their respective rights by actions for
specific performance (to the extent permitted by law). In case any
provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
G. Titles and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not be
considered in construing or interpreting this Agreement.
H. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
XXXXXXX.XXX CORPORATION
By:
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Name:
Title:
INVESTORS
GWKR Financial, Inc.
By:
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Name:
Title:
Address:
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Xxxxx Xxxxxxxx
Address:
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Xxxxxxx Xxxxxxx
Address:
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Xxxxxx X. Xxxxxx
Address:
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Continuation of signature page of the
Registration Rights Agreement
By:
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Xxxxxxx X. Xxxxx
Address:
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By:
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Xxxx X. Xxxxxx
Address:
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By:
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Xxxx Xxxxxxx Ball
Address:
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By:
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Xxxxxx Xxxxxxxx
Address:
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