Exhibit 10.11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of September 27, 1996 by and between A&R MATERIALS, INC., a
California corporation (the "Company"), DayStar Partners, L.P., a California
limited partnership ("DayStar"), and the other parties listed on Schedule 1
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attached hereto (the "Other Lenders"), each of whom is purchasing a Loan Note
from the Company under a Note Purchase Agreement dated the date hereof (the
"Purchase Agreement"). DayStar and the Other Lenders are collectively referred
to herein as the "Purchasers." The Purchase Agreement contemplates that after
the initial closing of the transactions contemplated by the Purchase Agreement,
additional closings may be held at which additional parties may become Other
Lenders.
FACTUAL BACKGROUND
A. The Company and the Purchasers have entered into the Purchase
Agreement pursuant to which the Purchasers will receive warrants to acquire
shares of common stock of the Company (the "Warrant Shares"); and
B. The Company and the Purchasers desire to provide for certain
arrangements with respect to the registration of the Warrant Shares under the
Securities Act of 1933, as amended.
In consideration of the mutual promises and covenants contained in
this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. Definitions. For purposes of this Agreement, the following terms
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shall have the following meanings:
1.1 Act: The Securities Act of 1933, as amended, or any other statute
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in effect from time to time corresponding to such act.
1.2 Holder: Any Purchaser who holds Registrable Securities or any
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holder of Registrable Securities to whom registration rights have been
transferred in compliance with paragraph 9.2 hereof.
1.3 Initiating Holders: A Holder or Holders who in the aggregate
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holds not less than 50% of the outstanding Registrable Securities.
1.4 Person: An individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
1.5 Participating Holders: Those Holders participating in any
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registration pursuant to Article II hereof.
1.6 Prospectus: The prospectus included in any Registration
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Statement, 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 the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
1.7 Register, registered, and registration: A registration effected
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by preparing and filing a Registration Statement in compliance with the Act and
the declaration or ordering of effectiveness of such Registration Statement by
the SEC.
1.8 Registrable Securities: All Warrant Shares issued or issuable
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to the Purchasers (and their transferees); provided that a security ceases to be
a Registrable Security when it is transferred other than pursuant hereto or if
it is no longer a Restricted Security. A security is a Restricted Security
unless and until:
1.8.1 it has been effectively registered under the Act and may be
disposed of in accordance with the Registration Statement covering it,
except for such registrations withdrawn pursuant hereto; or
1.8.2 as to any Holder, when all of the Warrant Shares owned by such
Holder may be distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Act within the succeeding six
(6) months without regard to the volume of trading in the Company's
securities.
1.9 Registration Statement: Any registration statement of the
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Company which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
1.10 SEC: The Securities and Exchange Commission or any other agency
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assuming or succeeding to the responsibilities thereof in connection with the
registration of securities.
Capitalized terms not herein defined have the meanings given them in
the Purchase Agreement or the Loan Notes.
ARTICLE II
COMPANY REGISTRATION
2.1 Company Post-IPO Registration. After the Company files a
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Registration Statement with the SEC for the initial underwritten public offering
of its securities ("IPO"), and, in any event, within nine (9) months after the
Company's IPO, the Company will file a Registration Statement with the SEC to
register the sale of all of the Warrant Shares, and will use all reasonable
efforts to ensure that such Registration Statement will be effective as soon as
reasonably possible after such filing. Such Registration Statement may include
other securities
of the Company, or securities held by other security holders of the Company.
After such registration is effective, the Company will keep such Registration
Statement effective until the earlier to occur of (i) two years after the
effective date, (ii) all of the Warrant Shares are sold by all of the Purchasers
(or their permitted transferees), or (iii) the Warrant Shares are no longer
Registrable Securities. The Company may register the Warrant Shares for sale
under Form SB-2 or a similar form under the Act, and after the date that the
Company becomes eligible to use a Form S-3 registration statement, the Company
may substitute for such Registration Statement a different form of Registration
Statement (such as a Form S-3 registration statement) under the Act which
includes the sale of all of the Warrant Shares.
2.2 Other Company Registration. Subject to Article IV hereof, if
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the registration statement described in Section 2.1 is not effective, then at
any time after the date of this Agreement the Company determines to register,
either for its own account or the account of any security holder or holders, any
of its common stock on a form that would also permit the registration of
Registrable Securities (expressly excluding any public offering relating solely
to Form S-8 for employee benefit plans or Form S-4 for certain business
combinations, or their successor forms, or any form that does not permit
secondary offerings), other than the Company's IPO registration and the
registration described in Section 2.1 above, the Company shall, each such time,
promptly give each Holder written notice of such determination. Upon the written
request of every Holder electing to participate, with each such request given
within ten (10) days after mailing of any such notice by the Company, the
Company shall use its best efforts to include in such registration (and any
related qualification under blue sky laws, and in any underwriting) all of the
Registrable Securities that the Participating Holders have requested be
registered, subject to the provisions of Section 8.1 of this Agreement.
2.3 Company's Notice. For each Company registration pursuant to
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Section 2.1 or 2.2, the Company shall state in a written notice to the Holders
those jurisdictions in which the Company intends to attempt to qualify such
securities under applicable blue sky laws. The Company may withdraw any
registration pursuant to this Article II at any time prior to the effectiveness
of the Registration Statement whether or not any Holder has elected to
participate. Subject to the provisions of Article VIII hereof, each Holder may
participate in an unlimited number of registrations pursuant to this Article II.
ARTICLE III
OBLIGATIONS OF THE COMPANY
3.1 Obligations of the Company. Whenever required under Article II
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to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible:
3.1.1 Prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities as promptly as possible and use all
reasonable efforts to cause such Registration Statement to become and
remain effective until the Participating Holders have completed the
distribution described in the Registration Statement or, with
respect to any Participating Holder, at such time as such Holder's Warrant
Shares are no longer Registrable Securities.
3.1.2 Use all reasonable efforts to prepare and file with the SEC
such amendments (including post-effective 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 Act with respect to the disposition of all securities covered by such
Registration Statement, subject to a Waiting Period (as defined in Section
8.2.2 hereof), if applicable;
3.1.3 Keep the Participating Holders advised as to the progress of
the registration and offering, and furnish to the Holders, at any time and
from time to time, such numbers of copies of a Prospectus, including a
preliminary prospectus, amendments or supplements, in conformity with the
requirements of the Act, and such other documents as any of them from time
to time may reasonably request in order to facilitate the disposition of
Registrable Securities owned by the Participating Holders;
3.1.4 Subject to the procedures described in Section 8.2.2, prepare
and furnish to such Holder a reasonable number of copies of a supplement to
or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such shares, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances than existing;
3.1.5 Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
3.1.6 Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP
number of all such Registrable Securities, in each case not later than the
effective date of such registration; and
3.1.7 Use all reasonable efforts to register and qualify the
securities covered by such Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate for the distribution of the securities covered by the
Registration Statement, provided that the Company shall not be required to
register or qualify the securities in any jurisdiction where the Company,
in connection with such registration or qualification or as a condition
thereto, is required to qualify to do business or to file a general consent
to service of process (unless the Company is already subject to service in
such jurisdiction and except as required by the Act) or in any jurisdiction
where the Company did not register and qualify the sale of its securities
in the IPO or where the Common Stock is not otherwise already approved for
secondary trading in that state, and further provided that (anything in
this Agreement to the contrary notwithstanding with respect to the bearing
of expenses) if any jurisdiction in which the securities shall be qualified
shall require that expenses incurred in connection with the
qualification of the securities in that jurisdiction be borne by selling
shareholders, then such expenses shall be payable by the Participating
Holders, pro rata, to the extent required by such jurisdiction.
3.2 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement with
respect to any Participating Holder that such person furnish to the Company such
information regarding such person, the Registrable Securities held by such
person, and the intended method of disposition of such securities as the Company
shall reasonably request and as shall be required in connection with the action
to be taken by the Company.
3.3 Expenses of Registration. All expenses incurred in connection with
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any registration effected hereunder (excluding underwriters' discounts and
commissions and stock transfer taxes), including without limitation all
registration and qualification fees and printing, legal and accounting fees and
costs, shall be borne by the Company. In addition, the Company shall bear the
reasonable attorneys' fees and costs incurred by the Participating Holders up to
an aggregate amount of $10,000.
ARTICLE IV
UNDERWRITING REQUIREMENTS
4.1 Underwriting. If any registration hereunder shall involve an
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underwriting, then the Company shall so advise all Holders in writing, and the
right of any Holder to participate in any registration hereunder 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. The Company, together with all Holders who intend to
distribute their Registrable Securities through such underwriting, shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Except as otherwise
provided in Section 2.1 hereof, if the underwriter or underwriters determine
that marketing factors require a limitation on the number of shares of Common
Stock to be underwritten, then the Company shall so advise all Participating
Holders. The Company shall be entitled to include all securities it proposed to
register for its own account in its notice to Holders, and the number of shares
of Registrable Securities which may thereafter be included in the registration
and underwriting shall be allocated first, as nearly as practical, among the
Participating Holders and other selling stockholders whose shares are included
as a result of registration rights granted by the Company, in proportion to the
number of securities held by each such person at the time of the initial filing
of the Registration Statement, and then to other participants, as may be agreed
by such other participants.
4.2 Withdrawal. No Registrable Securities excluded from the underwriting
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by reason of this Article IV shall be included in such registration. If any
person disapproves of the terms of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter or
underwriters. All Registrable Securities so withdrawn shall also be withdrawn
from the registration and shall not be transferred in a public distribution
prior to one
hundred and eighty (180) days after the effective date of the Registration
Statement relating thereto or such other shorter period of time as the
underwriter or underwriters may require.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification by Company. To the extent permitted by law, the
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Company will indemnify and hold harmless each of the Holders, each of the
Holder's respective partners, officers, directors, employees, heirs, successors,
assigns and agents, and each Person, if any, who controls any Holder within the
meaning of either Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (each such person being sometimes
hereinafter referred to as an "Indemnified Holder"), from and against any and
all losses, claims, damages, liabilities and expenses (or actions, proceedings
or settlements with respect thereto) including reasonable costs of investigation
and legal fees and expenses, (i) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or in any amendment or supplement thereto
or in any preliminary prospectus) or any document relating thereto, or (ii)
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, or (iii) arising out of or based upon any violation by
the Company of the Act or any rule or regulation thereunder applicable to the
Company and the relating action or inaction required of the Company in
connection therewith, and the Company will reimburse each Holder, each of its
partners, officers, directors, employees, heirs, successors, assigns and agents,
and each person controlling such Holder, for any and all legal and other
expenses reasonably incurred in connection with investigating, defending or
settling such loss, claim, damage or liability. Notwithstanding the above, this
indemnity and duty to defend shall not apply to any Holder to the extent that
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Holder expressly for use
in any Registration Statement or Prospectus, or any amendment or supplement
thereto, or any preliminary prospectus, or given supplementally to the SEC, the
National Association of Securities Dealers, any exchange or state securities
regulators. Further, the Company shall not be liable nor have any duty to defend
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if
(i) such Indemnified Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities, and (ii) the Prospectus would have completely corrected such untrue
statement or omission. Further, the Company shall not be liable nor have any
duty to defend in any case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in the Prospectus if
such untrue statement or alleged untrue statement, omission or alleged omission
is completely corrected in an amendment or supplement to the Prospectus and if,
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Indemnified 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
such loss,
claim, damage, liability or expense who purchased such Registrable Security
which is the subject thereof from such Indemnified Holder. This indemnity will
be in addition to any liability which the Company may otherwise have. This
indemnity shall not apply to any amount paid or incurred in settlement without
the express written consent of the Company, which consent shall not be
unreasonably withheld.
Each Indemnified Holder shall give prompt notice to the Company after
it has actual knowledge of any claim in respect of which indemnity may be sought
from the Company hereunder. After receipt of such notice, the Company may
assume the defense thereof at the Company's expense, provided that counsel for
the Company shall be satisfactory to such Indemnified Holder (whose approval
shall not be unreasonably withheld). The failure of any Indemnified Holder to
give notice as provided herein shall not relieve the Company of any of its
obligations hereunder to the extent such failure is not prejudicial. If the
Company assumes the defense in such action, such Indemnified Holder shall retain
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be the
expense of such Indemnified Holder unless (i) the Company has expressly agreed
in writing to pay such fees and expenses, or (ii) the Company shall have a duty
to assume the defense of such action or proceeding and has failed to do so and
failed to employ counsel satisfactory to such Indemnified Holder in any such
action or proceeding as required hereunder, or (iii) the named parties to any
such action or proceeding (including any impleaded parties) include both the
Indemnified Holder and the Company, and such Indemnified Holder shall have been
advised by counsel that there is a conflict of interest between the Company and
the Indemnified Holder making representation by the same counsel inappropriate.
In all circumstances, if the Indemnified Holder notifies the Company in writing
that it elects to employ separate counsel at the expense of the Company, the
Company shall not have the obligation to assume the defense of such action or
proceeding on behalf of such Indemnified Holder; it being understood, however,
that the Company shall not, in connection with any one such action or proceeding
or separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Indemnified Holder, which firm shall be
designated in writing by such Indemnified Holder and shall be subject to the
approval of the Company, which approval shall not be unreasonably withheld. The
Company shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its written consent,
or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless such Indemnified
Holder from and against any loss or liability by reason of such settlement or
judgment.
5.2 Indemnification by Holders. To the extent permitted by law,
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each of the Holders agrees to indemnify and hold harmless the Company, its
directors, employees, officers and agents, and each person, if any, who controls
the Company within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, and each other Holder, and each other Holder's partners,
officers, directors, employees, heirs, successors, assigns and agents and each
person controlling such Holder, to the same extent as the foregoing indemnity
from the Company to the Indemnified Holders, but only with respect to
information relating to each Holder furnished in writing by such Holder
expressly for use in any Registration Statement or Prospectus, or any
amendment or supplement thereto, or any preliminary prospectus, or given
supplementally to the SEC, the National Association of Securities Dealers, any
exchange or state securities regulators. In case any action or proceeding shall
be brought in respect of which indemnity may be sought against any Holder
hereunder, (a) such Holder shall have the rights and duties given the Company,
and (b) the Company and its directors, officers, employees or agents and
controlling persons shall have the rights and duties given to each Indemnified
Holder by paragraph 5.1. In no event shall the liability of any Holder hereunder
be greater in amount than the dollar amount of the proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
5.3 Contribution. If the indemnification provided for in this
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Article V is unavailable to an indemnified party under paragraphs 5.1 or 5.2
hereof (other than by reason of exceptions provided in those paragraphs) in
respect of any losses, claims, damages or liabilities referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company, on the one hand,
and of the Indemnified Holder or Holders, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Indemnified Holder or
Holders on the other 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 or by the Indemnified Holder or Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
paragraph 5.1, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
Company, and the Holders agree that it would not be just and equitable if
contribution pursuant to this paragraph 5.3 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to herein. Notwithstanding the provisions
of this paragraph 5.3, no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such Holder and distributed to the public were offered to the
public exceeds the amount of any damages which such Holder 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
5.4 Survival. All provisions of this Article V shall survive the
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expiration or termination of this Agreement for any reason.
ARTICLE VI
TERM AND TERMINATION
6.1 Termination of the Company's Obligations. The Company's
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obligations pursuant to Articles II and III shall expire September 30, 2003 or
until there are no longer any Registrable Securities outstanding.
ARTICLE VII
RULE 144 REPORTING
7.1 Reports Under Exchange Act. With a view to making available to
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Holders the benefits of Rule 144 promulgated under the Act ("Rule 144") and any
other rule or regulation of the SEC that may at any time permit the Holders to
sell securities of the Company to the public without registration, the Company
agrees to use its best efforts to:
7.1.1 make and keep public information available, as those terms
are understood and defined in Rule 144, at all times subsequent to
ninety (90) days after the effective date of the first registration
statement covering a public offering of the Company's securities filed
with the SEC by the Company;
7.1.2 file with the SEC, in a timely manner, all reports and
other documents required of the Company under the Act and the Exchange
Act; and
7.1.3 so long as such person owns any Registrable Securities,
furnish to the Holders forthwith upon request, a written statement by
the Company that it has complied with the reporting requirements of
Rule 144 (at any time after ninety (90) days after the effective date
of said first registration statement filed by the Company), and of the
Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and
documents so filed by the Company as may be reasonably requested in
availing the Holders of any rule or regulation of the SEC permitting
the selling of any such securities without registration.
ARTICLE VIII
OBLIGATIONS OF THE HOLDERS
8.1 Lockup Agreement. In consideration for the Company agreeing to
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its obligations hereunder, each of the Holders agrees in connection with the
initial registration of the Company's Common Stock for sale to the general
public and, upon the request of the Company or the Company's underwriters
managing any underwritten offering of the Company's securities, not to sell,
make short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any shares of Common Stock or other equity securities now owned or
hereafter acquired by Holder (other than those included in the registration)
without the prior written consent of the Company
or such underwriters, as the case may be, for such period of time (not to exceed
one year) from the effective date of such registration as the Company or the
Company's underwriters may specify. If the Holder is to be so obligated, each
Holder agrees to execute and deliver such documentation as may be reasonably
required by the underwriters in connection with this Article VIII. This
restriction shall not apply to a registration relating solely to employee
benefit plans on Form S-8 or similar successor forms, or a registration relating
solely to a Rule 145 transaction on Form S-4 or similar successor forms. In any
registered offering after the initial offering, the Holders shall agree to a
similar "lockup" of their shares (other than those included in the registration)
provided the lockup period does not exceed 180 days.
8.2 Notice of Proposed Transfers. The rights to cause the Company to
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register securities under Articles I and II hereunder shall be transferable or
assignable only to a transferee or assignee of Registrable Securities (as
presently constituted and subject to adjustments for stock splits, stock
dividends, and the like) equal to not less than 1% of the Company's outstanding
common stock or all of the Registrable Securities held by the transferor
Purchasers, subject to the following:
8.2.1 Prior to any proposed sale, assignment, transfer or pledge
of any Registrable Securities (other than a transfer not involving a
change in beneficial ownership) unless there is in effect a
registration statement under the Act covering the proposed transfer,
the Holder thereof shall give 10 calendar days' prior written notice
to the Company of such Holder's intention to effect such transfer,
sale, assignment or pledge in sufficient detail, and, if requested by
the Company, such notice shall be accompanied, at such Holder's
expense, by either (i) an unqualified written opinion of legal counsel
who shall be, and whose legal opinion shall be, reasonably
satisfactory to the Company, addressed to the Company, to the effect
that the proposed transfer of the Registrable Securities may be
effected without registration under the Act, or (ii) a "no action"
letter from the SEC to the effect that the transfer of such securities
without registration will not result in a recommendation by the staff
of the SEC that action be taken with respect thereto.
8.2.2 If a Holder proposes to sell any Registrable Securities
pursuant to an effective Registration Statement, such Holder shall
give ten (10) calendar days' prior written notice (a "Sale Notice") to
the Company of such Holder's intention to effect such sale, and if
within such ten (10) calendar day period the Company provides written
notice to such Holder that a sale at such time would, in the Company's
good faith judgment, be inadvisable due to the possible existence of
material undisclosed information relating to the Company's business
operations and instructs such Holder not to sell such Registrable
Securities for a specified time not to exceed 30 calendar days (the
"Waiting Period"), then such Holder shall not sell such Registrable
Securities until the earlier of (i) such Holder's receipt of written
notice from the Company that such Holder may sell such Registrable
Securities, or (ii) the expiration of the Waiting Period. The Company
may impose the Waiting Period for only one proposed sale per quarter
by such Holder.
8.2.3 After such Holder complies with the requirements of this
Section 8, such Holder shall be entitled to transfer such Registrable
Securities in accordance with the
terms of the notice delivered by the Holder to the Company. It is
agreed that the Company will not request an opinion of counsel for the
Holder for transactions made in reliance on Rule 144 under the Act as
to which no notice shall be necessary, so long as appropriate Rule 144
representations by such Holder and his or its broker are provided to
the Company. Each certificate evidencing the Registrable Securities
transferred as above provided shall bear the appropriate restrictive
legend except that such certificate shall not bear any restrictive
legend if, in the opinion of counsel for such Holder and the Company,
such legend is not required in order to establish compliance with any
provision of the Act. Notwithstanding the foregoing, each Holder
agrees that it will not request that a transfer of the Registrable
Securities be made (or that any legend be removed from the certificate
evidencing the Registrable Securities) solely in reliance on Rule
144(k) under the Act if as a result of such proposed transfer, the
Company would be rendered subject to the reporting requirements of the
Exchange Act.
8.3 No Right to Delay. No Holder shall have any right to take any
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action to restrain, enjoin, or otherwise delay any registration as a result of
any controversy under this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Assignment. The terms and conditions of this Agreement shall be
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binding upon and inure to the benefit of all of the respective successors,
transferees and assigns of the parties hereto who agree to be bound by all of
the terms of this Agreement. This Agreement shall be binding upon the parties
with respect to shares of capital stock subsequently acquired by any Holder.
9.2 Entire Agreement; Amendment; Waiver. This Agreement (including
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the Exhibits hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
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, but in no event shall the obligation of any Holder hereunder the
materially increased, except upon the written consent of such Holder.
9.3 Information Confidential. Each Holder acknowledges that the
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information received by it pursuant hereto may be confidential and for its use
only, and it will not use such confidential information in violation of the
Exchange Act or reproduce, disclose or disseminate such information to any other
person (other than its employees or agents having a need to know the contents of
such information, and its attorneys) or use such information to the detriment of
the Company, except in connection with the exercise of rights under this
Agreement, unless the Company has made such information available to the public
generally or such Holder is required to disclose such information by a
governmental body.
9.4 Further Assurances. The parties hereto shall use their best
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efforts to do and perform or cause to be done and performed all such further
acts and shall execute and deliver all such other agreements, certificates,
instruments or documents as any other party may reasonably request in order to
carry out the intent and purpose of this Agreement and the consummation of the
transactions contemplated hereby and thereby. Neither the Company nor any Holder
shall voluntarily undertake any course of action inconsistent with the
satisfaction of the requirements applicable to them set forth in this Agreement
and each shall promptly do all such acts and take all such measures as may be
appropriate to enable them to perform as early as practicable the obligations
herein and therein required to be performed by them.
9.5 Third Parties. Nothing in this Agreement, express or implied, is
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intended to confer upon any Person, other than the parties hereto, the
Indemnified Holders, the Company's directors, controlling persons, employees,
officers, agents and their respective heirs, successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.
9.6 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
executed by residents of California and wholly to be performed in California.
Each party hereby submits to the exclusive jurisdiction and venue of the
Superior Court of the State of California for the County of Santa Xxxxx or the
Federal District Court for the Northern District of California for purposes of
any legal or equitable action or proceeding arising out of this Agreement. Each
party agrees that service upon such party in any such action or proceeding may
be made by first class mail, certified or registered, return receipt requested
as provided by the giving of notices in Section 9.8.
9.7 Titles and Subtitles; Form of Pronouns. The titles of the
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articles and sections of this Agreement are for convenience only and are not to
be considered in construing this Agreement. All pronouns used in this Agreement
shall be deemed to include masculine, feminine and neuter forms.
9.8 Notices. Except as otherwise expressly provided herein, all
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notices and other communications required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon receipted personal
delivery (professional courier permissible), United States certified mail
delivery or confirmed facsimile transmission to the address set forth with
respect to such party on the signature pages of this Agreement (and with copies
as indicated thereon), or to such other address as such party shall have given
notice of pursuant hereto to the other party or parties.
9.9 Rights; Severability. Unless otherwise expressly set forth
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herein, a Holder's rights and obligations hereunder are several rights, not
rights jointly held with the other Holders. If one or more provisions of this
Agreement are held to be invalid, illegal or unenforceable under applicable law,
portions of such provisions, or such provisions in their entirety, to the extent
necessary, shall be severed from this Agreement, and the balance of this
Agreement shall be enforceable in accordance with its terms.
9.10 Delays or Omissions. No delays or omissions to exercise any
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right, power or remedy accruing to any party to this Agreement, upon any breach
or default of the other party, shall impair any such right, power or remedy of
such nonbreaching party 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 theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under 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.
9.11 Attorneys' Fees. In the event of litigation hereunder, the
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prevailing party or parties shall be entitled to recover its or their costs of
litigation, including reasonable attorneys' fees, in addition to all other
relief as may be granted.
9.12 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
COMPANY: A&R MATERIALS, INC., a California
corporation
By: ________________________________
Xxxxx X. Xxxxxxxxx
Title: President
Address for Notice:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxxxx
With a copy to:
Xxxxx Xxxxx, Esq.
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
(SIGNATURES CONTINUED ON NEXT PAGE)
DAYSTAR: DAYSTAR PARTNERS, L.P., A CALIFORNIA
LIMITED PARTNERSHIP
By: XXXXX XXXXX CO., INC., its
General Partner
By:
--------------------------
Xxxxx Xxxxx, President
Address for Notice:
00000 X. XxXxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attn.: Xxxxx Xxxxx
With a copy to:
Coblentz, Cahen, XxXxxx & Breyer, LLP
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, Esq.
OTHER LENDERS: _______________________________
By: ____________________________
By: _________________________
Title: ______________________
_______________________________
_____________________________________
