AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), by and among XXXXXX TECHNOLOGIES, INC., a Delaware corporation
(the "Company"), and the investors listed on Schedule 1 hereto (the
"Investors"), is made as of the 19th day of November 2001 for the purpose of
amending and restating the Registration Rights Agreement, among the Company and
the Investors, dated May 30, 2000 (the "Original Agreement"). References herein
to the "date hereof" shall be deemed references to the date of the Original
Agreement.
RECITALS
A. MUSI Investments S.A. ("MUSI") has transferred to Finpart
International S.A. ("Finpart International") 1,716,327 shares of Common Stock
owned by MUSI (the "Transferred Shares").
B. The Company has issued to MUSI 1,400,123 shares of Common Stock
(the "Conversion Shares") as a result of the conversion of that certain
Convertible Promissory Date, dated as of May 14, 2001, executed by the Company
in favor of MUSI, and Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx have transferred
to MUSI 500,000 shares of Common Stock (the "Xxxxxx Transferred Shares")
pursuant to that certain Share Transfer Agreement, dated as of the date hereof,
between MUSI, Xxxxxxx X. Xxxxxx, and Xxxxxx X. Xxxxxx.
C. The Transferred Shares are currently in the process of being
registered by the Company pursuant to a Registration Statement on Form S-3
filed with the SEC on October 26, 2001 (the "Pending Registration").
D. The Company and the Investors desire to now amend and restate this
Agreement to (i) include the Conversion Shares and Xxxxxx Transferred Shares
within the definition of Registrable Securities, and (ii) include Finpart
International as an Investor party hereto and include the Transferred Shares
within the definition of Registrable Securities until such time as the Pending
Registration is declared effective by the SEC.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
1. Definitions; Joinder
(a) Definitions. For purposes of this Agreement, in addition to the
terms defined elsewhere herein, the following terms have the following meanings
when used herein with initial capital letters:
"Advice" has the meaning set forth in Section 6.
"Affiliate" has the meaning given to that term in Rule 405 under the
Securities Act.
"Common Stock" means the common stock, par value $0.001, of the
Company.
"Company" has the meaning set forth in the preamble.
"indemnified party" has the meaning set forth in Section 8(c).
"indemnifying party" has the meaning set forth in Section 8(c).
"Losses" has the meaning set forth in Section 8(a).
"New York Court" has the meaning set forth in Section 11(j).
"Notice" has the meaning set forth in Section 3(c).
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including without limitation post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"Purchase Agreement" means that certain Purchase Agreement dated as of
May 30, 2000 by and among the Company and the Investors.
"Registrable Securities" means (i) the shares of Common Stock
purchased under the Purchase Agreement and that are issued upon exercise of the
Warrant, (ii) the warrants issued under the Warrant Agreement, (iii) the
Conversion Shares, (iv) the Xxxxxx Transferred Shares, (v) the Transferred
Shares (but only until such time as the Pending Registration is declared
effective), and (vi) any other securities issued in respect of the shares of
Common Stock referred to in clause (i) or (ii) upon any stock split, stock
dividend, recapitalization or other distribution with respect to, conversion or
exchange of or in replacement of such shares, until, in the case of any such
security, (x) it is effectively registered under the Securities Act and
disposed of in accordance with the Registration Statement covering it, (y) it
is saleable by the holder thereof pursuant to Rule 144(k) without any volume
limitation applicable thereto, or (z) it is distributed to the public pursuant
to Rule 144; provided, however, that any shares previously sold pursuant to a
registered public offering or pursuant to an exemption from the registration
requirements of the Securities Act under which the transferee does not receive
"restricted securities" shall cease to be Registrable Securities for the
Investors.
"Registration Expenses" has the meaning set forth in Section 7(a).
"Registration Statement" means any registration statement under the
Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including without limitation the related
Prospectus, all amendments and supplements to such registration statement
(including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
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"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Counsel" has the meaning set forth in Section 4(a).
"Unit" has the meaning set forth in the preamble.
"Warrant" means the right to acquire one share of Common Stock.
"Warrant Agreement" means the warrant agreement between the Company
and the Investors, dated the date hereof.
(b) Joinder of Finpart International. Finpart International is hereby
deemed an "Investor" for all purposes under this Agreement.
2. Holders of Registrable Securities. Whenever a number or percentage
of Registrable Securities is to be determined hereunder, each then-outstanding
share that is exercisable to purchase, convertible into or exchangeable for
shares of capital stock of the Company will be deemed to be equal to the number
of shares of Common Stock for which such share (or the security into which such
share is then convertible) is then so purchasable, convertible or exercisable.
3. Shelf Registration. (a) Upon written request from an Investor or
Investors holding at least 35% of the Registrable Securities then outstanding
and in no event later than 120 days after the date hereof, the Company will
register (a "Shelf Registration") all Registrable Securities held by such
Investor or Investors by filing a Registration Statement on Form S-3 (or any
equivalent successor form) with the SEC under and in accordance with the
provisions of the Securities Act. Upon receipt of such written request, the
Company shall, within five days thereof, give written notice of such request to
all Investors, and the Company shall include in the Shelf Registration all the
Registrable Securities which the Investors shall in writing request (within 20
days of receipt of the notice given by the Company pursuant to this Section
3(a)) to be included in such Shelf Registration. The Company will use its best
efforts to cause the Registration Statement on Form S-3 to be declared
effective by the SEC within 60 calendar days of the filing of such Registration
Statement with the SEC. The Company will keep the Registration Statement filed
in respect thereof effective until such time when all Registrable Securities
covered by such Registration Statement have been sold pursuant to such
Registration Statement. Notwithstanding anything herein to the contrary, the
Investors agree that the Pending Registration constitutes a Shelf Registration
hereunder.
(b) Postponement of Shelf Registration. The Company will be entitled
to postpone the filing period (or suspend the effectiveness) of any Shelf
Registration for a reasonable period of time, not in excess of 30 calendar
days, if the Board of Directors of the Company determines, in the good faith
exercise of its reasonable business judgment, that such registration and
offering could materially interfere with bona fide financing plans of the
Company or would require
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disclosure of information, the premature disclosure of which could materially
and adversely affect the Company or otherwise would not be in the best interest
of the Company. If the Company postpones the filing of a Registration
Statement, it will promptly notify the holders of Registrable Securities in
writing of the postponement, the reasons therefor and the proposed length of
the postponement and promptly notify such holders in writing when the events or
circumstances permitting such postponement have ended. The rights provided
hereunder may be exercised on only one occasion, notwithstanding any other
provision hereto.
4. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 3 hereof, the Company will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement on Form S-3
(or any equivalent successor form) under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with
the intended method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by reference), the
Company will furnish to the holders of the Registrable Securities covered by
such Registration Statement and their counsel (the "Special Counsel") copies of
all such documents proposed to be filed, and will provide such holders and the
Special Counsel five days to review and comment on such documents. The Company
will not file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto (including such documents which, upon
filing, would be incorporated or deemed to be incorporated by reference
therein) to which the holders of a majority of the Registrable Securities
covered by such Registration Statement and the Special Counsel, shall
reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 3; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act;
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or to
such Prospectus as so supplemented;
(c) Notify the selling holders of Registrable Securities and the
Special Counsel, promptly, and (if requested by any such person) confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
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proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement contemplated by Section
4(m) hereof (including any underwriting agreement) cease to be true and
correct, (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the occurrence of any
event which makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in a Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it 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 not misleading and, in the
case of the Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (vii) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate;
(d) Use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment;
(e) If requested by the holders of a majority of the Registrable
Securities being registered, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holders agree
should be included therein as may be required by applicable law and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company will not be required to take any
actions under this Section 4(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law;
(f) Furnish to each selling holder of Registrable Securities and the
Special Counsel without charge, at least one conformed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements (but excluding schedules, all documents incorporated or deemed
incorporated therein by reference and all exhibits, unless requested in writing
by such holder or counsel);
(g) Deliver to each selling holder of Registrable Securities and the
Special Counsel without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such persons
may request; and the Company hereby consents to the use of such Prospectus or
each amendment or supplement thereto by each of the selling holders of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto;
(h) Prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling holders of Registrable Securities in
connection with the registration or
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qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller or underwriter
reasonably requests in writing; keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdiction of
the Registrable Securities covered by the applicable Registration Statement;
provided, however that the Company will not be required to (i) qualify
generally to do business in any jurisdiction in which it is not then so
qualified or (ii) take any action that would subject it to general service of
process in any such jurisdiction in which it is not then so subject;
(i) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates will not bear any
restrictive legends;
(j) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States except as may be
required solely as a consequence of the nature of such selling holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(k) Upon the occurrence of any event contemplated by Section 4(c)(vi)
or 4(c)(vii) hereof, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the Investors of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(l) Use its best efforts to cause all Registrable Securities covered
by such Registration Statement to be listed on the NASDAQ Small Cap National
Market or any other securities exchange, if any, on which similar securities
issued by the Company are then listed;
(m) Enter into such agreements and take all such other actions in
connection therewith (including those requested by the holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, (i) make
such representations and warranties to the holders of such Registrable
Securities, if any, with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
holders of a majority of the Registrable Securities being sold) addressed to
such selling holders of Registrable Securities and each of the underwriters, if
any, covering the matters customarily covered in
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opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters, including without
limitation the matters referred to in clause (i) above; (iii) use its best
efforts to obtain "comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data is, or is required to be, included in the Registration Statement),
addressed to each selling holder of Registrable Securities, such letters to be
in customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; and (iv) deliver
such documents and certificates as may be requested by the holders of a
majority of the Registrable Securities being sold and the Special Counsel to
evidence the continued validity of the representations and warranties of the
Company and its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or similar agreement entered into by the Company. The foregoing
actions will be taken in connection with each closing under such agreement as
and to the extent required thereunder;
(n) Make available for inspection by a representative of the holders
of Registrable Securities being sold, and Special Counsel or any accountant
retained by such selling holders, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the officers, directors and employees of the Company and its subsidiaries
to supply all information reasonably requested by any such representative,
attorney or accountant in connection with such Registration Statement;
provided, however, that any records, information or documents that are
designated by the Company in writing as confidential at the time of delivery of
such records, information or documents will be kept confidential by such
persons unless (i) such records, information or documents are in the public
domain or otherwise publicly available, (ii) disclosure of such records,
information or documents is required by court or administrative order or is
necessary to respond to inquires of regulatory authorities, or (iii) disclosure
of such records, information or documents, in the opinion of counsel to such
person, is otherwise required by law (including without limitation pursuant to
the requirements of the Securities Act);
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
calendar days after the end of any 12-month period (or 90 calendar days after
the end of any 12-month period if such period is a fiscal year) commencing on
the first day of the first fiscal quarter of the Company, after the effective
date of a Registration Statement, which statements shall cover said 12-month
period.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within five days after receiving
such request.
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Each holder of Registrable Securities will be deemed to have agreed by
virtue of its acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in Section 4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
In the event the Company shall give any such notice, the time period prescribed
in Section 3(a) hereof will be extended by the number of days during the time
period from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented
or amended Prospectus contemplated by Section 4(k) hereof or (y) the Advice.
5. Registration Expenses. (a) All Registration Expenses will be borne
by the Company whether or not any Registration Statement becomes effective.
"Registration Expenses" will mean all fees and expenses incident to the
performance of or compliance with this Agreement by the Company, including
without limitation (i) all registration and filing fees (including without
limitation fees and expenses (x) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (y) in compliance
with securities or "blue sky" laws (including without limitation fees and
disbursements of counsel for the underwriters or selling holders in connection
with "blue sky" qualifications of the Registrable Securities and determination
of the eligibility of the Registrable Securities for investment under the laws
of such jurisdictions as the holders of a majority of the Registrable
Securities being sold may designate)), (ii) printing expenses (including
printing of prospectuses if requested by the holders of a majority of the
Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and the Special Counsel for the sellers of the
Registrable Securities, (v) fees and disbursements of all independent certified
public accountants referred to in Section 4(m)(iii) hereof (including the
expenses of any special audit and "comfort" letters required by or incident to
such performance), (vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the National Association
of Securities Dealers, Inc., (vii) Securities Act liability insurance if the
Company so desires such insurance, and (viii) fees and expenses of all other
persons retained by the Company, provided, however, that Registration Expenses
will not include fees and expenses of counsel for the holders of Registrable
Securities other than as provided herein, all of which shall be borne by such
holders. In addition, the Company will pay its internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange on which similar securities issued by
the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company.
6. Indemnification. (a) Indemnification by the Company. The Company
will, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities
registered pursuant to this Agreement, the officers,
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directors and agents and employees of each of them, each person who controls
such holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
any such controlling person, from and against all losses, claims, damages,
liabilities, costs (including without limitation the costs of investigation and
reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred,
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are
based solely upon information furnished in writing to the Company by such
holder expressly for use therein; provided, however, that the Company will not
be liable to any holder of Registrable Securities to the extent that any such
Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if
either (A) (i) such holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by such
holder of a Registrable Security to the person asserting the claim from which
such Losses arise and (ii) the Prospectus would have completely corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission; or (B) such untrue statement or alleged untrue statement or such
omission or alleged omission is completely corrected in an amendment or
supplement to the Prospectus previously furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, and such
holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of a Registrable Security
to the person asserting the claim from which such Losses arise.
The rights of any holder of Registrable Securities hereunder will not
be exclusive of the rights of any holder of Registrable Securities under any
other agreement or instrument of any holder of Registrable Securities to which
the Company is a party. Nothing in such other agreement or instrument will be
interpreted as limiting or otherwise adversely affecting a holder of
Registrable Securities hereunder and nothing in this Agreement will be
interpreted as limiting or otherwise adversely affecting the holder of
Registrable Securities' rights under any such other agreement or instrument,
provided, however, that no indemnified party will be entitled hereunder to
recover more than its indemnified Losses.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities will
severally indemnify, to the fullest extent permitted by law, the Company, its
directors and officers, agents and employees, each person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of or based upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is finally judicially determined
to have been contained in any information so furnished in writing by such
holder to the Company expressly for use in such Registration Statement or
Prospectus and was relied upon by the Company in the preparation of such
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Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses and underwriter's discounts and commissions) received by such holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any person shall become
entitled to indemnity hereunder (an "indemnified party"), such indemnified
party shall give prompt notice to the party from which such indemnity is sought
(the "indemnifying party") of any claim or of the commencement of any action or
proceeding with respect to which such indemnified party seeks indemnification
or contribution pursuant hereto; provided, however, that the failure to so
notify the indemnifying party will not relieve the indemnifying party from any
obligation or liability except to the extent that the indemnifying party has
been prejudiced materially by such failure. All fees and expenses (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) will be paid to the indemnified party, as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this Section 6,
unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification
hereunder.
(d) Contribution. If the indemnification provided for in this Section
6 is unavailable to an indemnified party under Section 6(a) or 6(b) hereof in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, jointly and severally, contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
10
paragraph. Notwithstanding the provision of this Section 6(d), an indemnifying
party that is a selling holder of Registrable Securities will not be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such indemnifying party and
distributed to the public exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The provisions of this Section 6 will survive any termination of this
Agreement.
7. Rules 144 and 144A. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely
manner, and will cooperate with any holder of Registrable Securities (including
without limitation by making such representations as any such holder may
reasonably request), all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rules 144
and 144A (including without limitation the requirements of Rule 144A(d)(4)).
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such filing requirements.
8. Miscellaneous. (a) Additional Investors. Any "Additional Investor"
as defined in the Purchase Agreement shall become a party to this Agreement by
signing a counterpart joinder hereof and shall thereupon be an "Investor"
hereunder. The Company shall promptly deliver to each party an amended list of
Investors which includes any Additional Investors.
(b) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it will
waive the defense that a remedy at law would be adequate.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, and will not, on or after the date hereof, enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
holders of a majority of the then-outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not
11
directly or indirectly affect the rights of other holders of Registrable
Securities may be given by holders of a majority of the Registrable Securities
being sold by such holders; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and will be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by fax, or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(1) If to the Company:
Xxxxxx Technologies, Inc.
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
and thereafter at such other address, notice of which is given to the
holders of Registrable Securities in accordance with the provisions of
this Section 8(e);
(2) If to the Investors or any other holder of
Registrable Securities, at their respective
addresses set forth on the books and records of the
Company, or at such other address, notice of which
is given by such Investors to the Company in
accordance with the provisions of this Section 8(e).
(f) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a stock book with
respect to the Common Stock, in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the person in whose name Registrable Securities are registered in the
stock book of the Company as the owner thereof for all purposes, including
without limitation the giving of notices under this Agreement.
(g) Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties. The Company may not assign its rights or obligations hereunder without
the prior written consent of each holder of any Registrable Securities. No
Stockholder may assign its rights or obligations under this Agreement to any
subsequent holder of shares unless such holder has acquired at least 33% of the
total outstanding shares of Common Stock, whereupon such holder will be deemed
to be a "Stockholder" for all purposes under this Agreement. Notwithstanding
the foregoing, MUSI Investments S.A. ("MUSI") may assign its rights and
obligations under this Agreement to any Affiliate of MUSI. Notwithstanding the
foregoing, no transferee will have any of the rights granted under this
Agreement (i) until such transferee shall have acknowledged its rights and
obligations hereunder by a signed written statement of such transferee's
acceptance of such rights and obligations or (ii) if the transferor notifies
the Company in writing on or prior to such transfer that the transferee shall
not have such rights. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company is not
12
the surviving corporation unless the proposed surviving corporation, prior to
the merger, consolidation or reorganization, agrees in writing to assume the
obligations of the Company under this Agreement, and for that purpose
references herein to "Registrable Securities" shall be deemed to be references
to the securities to which holders of Registrable Securities would be entitled
to receive in exchange for Registrable Securities in any such merger,
consolidation or reorganization unless such securities were registered under
the Securities Act in connection with the merger, consolidation or
reorganization.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(i) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
(k) Jurisdiction; Consent to Service of Process. Each of the Investors
and the Company irrevocably submits to the non-exclusive jurisdiction of any
court located in the Borough of Manhattan or the United States Federal Court
sitting in the Southern District of New York over any suit, action or
proceeding arising out of or relating to this Agreement. Each of the Investors
and the Company consents to process being served in any such suit, action or
proceeding by serving a copy thereof upon the agent for service of process,
provided that to the extent lawful and possible, written notice of such service
will also be mailed to such Investors or the Company, as the case may be. Each
of the Investors and the Company agrees that such service will be deemed in
every respect effective service of process upon such Investors or the Company,
as the case may be, in any such suit, action or proceeding and will be taken
and held to be valid personal service upon such Stockholder or the Company, as
the case may be. Nothing in this subsection will affect or limit any right to
serve process in any manner permitted by law, to bring proceedings in the
courts of any jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction. Each of the Investors
and the Company waives any right it may have to assert the doctrine of forum
non conveniens or to object to venue to the extent any proceeding is brought in
accordance with this Section 8(k).
(l) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
13
(m) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the registration rights granted by the Company with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
[Remainder of page intentionally blank]
14
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
XXXXXX TECHNOLOGIES, INC.
By: /s/Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & Chief Executive Officer
INVESTORS
FINPART INTERNATIONAL S.A.
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------
Name:
Title:
MUSI INVESTMENTS S.A.
By: /s/ Xxxx Xxxxxxx Antivari
----------------------------------------
Name:
Title:
SCHOELLER TEXTIL AG
By: /s/ X. Xxxxxx /s/Xxxx Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx Hans Xxxxxx Xxxxxx
Title: Chairman Chief Executive
Of the Board Officer
/s/ Xxxx X. Xxxxx
-------------------------------------------
Xxxx X. Xxxxx
ALLFIRST COMPANY CUSTODIAN
FOR XXXXX & XXXXXXX PARTNERS RETIREMENT
PLAN FOR THE BENEFIT OF XXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
[Signature Page to Amended and Restated Registration Rights Agreement]
16
Schedule 1
Investors
Finpart International S.A.
MUSI Investments S.A.
Xxxx X. Xxxxx
Allfirst Company Custodian for Xxxxx & Xxxxxxx Partners Retirement Plan for the
Benefit of Xxxx X. Xxxxx
Schoeller Textil AG
17
