EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of the 8th day of April, 2003, by and among TECHTEAM GLOBAL,
INC., a Delaware corporation (the "Company"), and CHRYSCAPITAL II, LLC, a
Mauritius company ("ChrysCapital").
RECITALS:
A. In connection with the Securities Purchase Agreement (as defined in
Section 1.1(kk) below), the Company has agreed, upon the terms and subject to
the conditions of the Securities Purchase Agreement, to sell to ChrysCapital the
Shares (as defined in Section 1.1(ll) below). The Shares are convertible into
the Conversion Shares (as defined in Section 1.1(k) below) pursuant to, and upon
the terms and conditions of, the Certificate of Designations (as defined in
Section 1.1(e) below).
B. To induce ChrysCapital to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act (as defined in Section 1.1(jj) below) and
applicable state securities laws with respect to the Conversion Shares.
AGREEMENT:
1. CERTAIN DEFINITIONS.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings given them in the Securities Purchase Agreement. As used in
this Agreement, the following terms shall have the meanings set forth below:
(a) "Advice" shall have the meaning set forth in Section 5.2
hereof.
(b) "Affiliate" shall have the meaning set forth in Rule 405
promulgated under the Securities Act.
(c) "Agreement" shall have the meaning set forth in the first
paragraph of this Agreement.
(d) "Board" shall have the meaning set forth in Section 3.2(f)
hereof.
(e) "Certificate of Designations" shall mean the Certificate of
Designations as defined in the Securities Purchase Agreement.
(f) "ChrysCapital" shall mean ChrysCapital II, LLC, a Mauritius
company.
(g) "Closing" shall mean April 8, 2003, the date upon which the
Company issued and sold the Shares to ChrysCapital pursuant to the Securities
Purchase Agreement.
(h) "Commission" shall mean the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
(i) "Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Company.
(j) "Company" shall have the meaning set forth in the first
paragraph of this Agreement.
(k) "Conversion Shares" shall mean the shares of Common Stock
issuable upon the conversion of the Shares pursuant to the Certificate of
Designations.
(l) "Demand Period" shall have the meaning set forth in Section 3.1
hereof.
(m) "Demand Registration" shall have the meaning set forth in
Section 3.1 hereof.
(n) "Demand Registration Request" shall have the meaning set forth
in Section 3.2(a) hereof.
(o) "Demand Registration Statement" shall have the meaning set
forth in Section 3.2(e) hereof.
(p) "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.
(q) "Form S-3 Registration Statement" shall have the meaning set
forth in Section 3.2(b) hereof.
(r) "Holder" shall mean ChrysCapital and any subsequent holder of
Registrable Securities to whom the registration rights conferred by this
Agreement have been transferred in compliance with Section 2.2 hereof.
(s) "Initiating Holders" shall have the meaning set forth in
Section 3.1 hereof.
(t) "Interim Demand Period" shall have the meaning set forth in
Section 3.2(b) hereof.
(u) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(v) "Other Holders" shall have the meaning set forth in Section 4.4
hereof.
(w) "Other Shareholders" shall mean persons other than Holders who,
by virtue of agreements with the Company, are entitled to include their
securities in certain
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registrations hereunder. The Company represents and warrants to ChrysCapital
that, as of the date hereof, there are no Other Shareholders.
(x) "Person" means an individual, a partnership, an association, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department, agency or principal subdivision thereof.
(y) "Piggyback Notice" shall have the meaning set forth in Section
4.1 hereof.
(z) "Piggyback Registration" shall have the meaning set forth in
Section 4.1 hereof.
(aa) "Piggyback Registration Statement" shall have the meaning set
forth in Section 4.1 hereof.
(bb) "Preferred Stock" shall mean the Series A Convertible
Preferred Stock, par value $.01 per share, of the Company.
(cc) "Prospectus" is the prospectus included in any Registration
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 such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and material
incorporated by reference in such prospectus.
(dd) 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 the effectiveness of
such registration statement.
(ee) "Registrable Securities" shall mean the Conversion Shares
issuable upon the conversion of the Shares in accordance with the Certificate of
Designations, and (iii) any Common Stock issued as a dividend or other
distribution with respect to or in exchange for or in replacement of the shares
referenced above. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when (a) a Registration Statement with
respect to the sale or transfer of such securities has been declared effective
under the Securities Act and such shares have been sold pursuant to such
Registration Statement, (b) all securities (including any Conversion Shares
issuable upon conversion of the Shares) held by a Holder shall become saleable
pursuant to Rule 144 (or any successor provision) under the Securities Act in
any ninety (90) day period, or (c) such securities shall have ceased to be
outstanding. For purposes of this Agreement, a holder of Shares shall be treated
as a Holder of the number of Conversion Shares issuable upon the conversion of
such Shares in accordance with the Certificate of Designations; provided,
however, that such Shares shall be converted into Conversion Shares constituting
Registrable Securities (i) if being registered as part of a firm commitment
underwriting, then immediately prior to the effectiveness of the applicable
Registration Statement, and (ii) if being registered as part of a registration
which is not a firm
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commitment underwriting, then in connection with the closing of the sale of such
Registrable Securities. In no event, however, shall the Company be required to
register any Shares or other securities (other than shares of Common Stock
constituting Registrable Securities) hereunder.
(ff) "Registration Expenses" shall have the meaning set forth in
Section 6.1 hereof.
(gg) "Registration Statement" means any registration statement of
the Company filed under the Securities Act which covers any of its securities,
including any prospectus constituting a part thereof, amendments and supplements
to such Registration Statement, including post-effective amendments, all
exhibits and all materials incorporated by reference in such Registration
Statement.
(hh) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(ii) "Rule 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(jj) "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.
(kk) "Securities Purchase Agreement" shall mean the Securities
Purchase Agreement, dated April 8, 2003, between the Company and ChrysCapital
relating to the issuance and sale of the Shares.
(ll) "Shares" shall mean the 689,656 shares of Preferred Stock
issued and sold by the Company to ChrysCapital pursuant to the Securities
Purchase Agreement..
(mm) "Supplemental Demand Registration Request" shall have the
meaning set forth in Section 3.2(d) hereof.
2. REGISTRABLE SECURITIES.
2.1 Registrable Securities. The securities entitled to the benefits
of this Agreement are the Registrable Securities.
2.2 Rights of Subsequent Holders. Subject to the restrictions on
transferability of the Shares and the Conversion Shares as set forth in the
Securities Purchase Agreement, the Certificate of Designations and/or on the
legends affixed to certificates representing the Registrable Securities, the
rights to cause the Company to register securities granted to a Holder by the
Company under this Agreement may be transferred or assigned by ChrysCapital only
to a transferee or assignee of not less than 70,000 shares of Registrable
Securities (as presently constituted and subject to subsequent adjustments for
stock splits, stock dividends, reverse stock splits, and the like), provided
that the Company is given written notice at the time of or within a
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reasonable time after such transfer or assignment, stating the name and address
of the transferee or assignee and identifying the securities with respect to
which such registration rights are being transferred or assigned, and, provided
further, that the transferee or assignee of such rights assumes in writing the
obligations of ChrysCapital under this Agreement.
3. DEMANDS FOR REGISTRATION.
3.1 Demand Registration. Commencing on the first anniversary of the
date of this Agreement and ending with the termination of this Agreement
pursuant to Section 9.3 hereof (the "Demand Period"), subject to the terms and
conditions of this Agreement, one or more Holders of the Registrable Securities
may make a written request to the Company for registration under the Securities
Act of all or part of their Registrable Securities having an aggregate market
value, determined as of the close of business on the last trading day
immediately preceding the date of such written request, of not less than
$2,500,000 ($1,000,000 if the Company is eligible to use Form S-3 to register
the Registrable Securities) (a "Demand Registration"). Such Holders of
Registrable Securities making such a demand are sometimes referred to herein as
"Initiating Holders" or individually an "Initiating Holder". A registration
shall not be deemed to be a Demand Registration (i) unless a Registration
Statement with respect thereto has become effective, (ii) if after it has become
effective, such registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental agency or
court for any reason not attributable to the holders of Registrable Securities
participating in such registration and has not thereafter become effective, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the Registrable
Securities or Holders thereof participating in such registration.
3.2 Demand Procedure.
(a) Subject to Section 3.2(b) hereof, during the Demand Period the
Initiating Holders may deliver to the Company a written request (a "Demand
Registration Request") that the Company register any or all of the Registrable
Securities of such Initiating Holder(s).
(b) Holders of Registrable Securities will be entitled to a total
of not more than one (1) Demand Registration (and an additional two (2) Demand
Registrations, provided the Company is eligible to use Form S-3 to register the
Registrable Securities), pursuant to which the Company will be required to file
a Registration Statement with the Commission on any form, including a Form S-3
("Form S-3 Registration Statement"). Holders of Registrable Securities may make
only one Demand Registration Request in any twelve-month period during the
Demand Period (the "Interim Demand Period"). The Company shall only be required
to file one Registration Statement (as distinguished from supplements or
pre-effective or post-effective amendments thereto) in response to each Demand
Registration Request.
(c) A Demand Registration Request shall (i) set forth the number of
Registrable Securities intended to be sold pursuant to the Demand Registration
Request and the aggregate market value thereof as of the close of business on
the last trading day immediately preceding the Demand Registration Request, (ii)
identify the Initiating Holders making the
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Demand Registration Request and the nature and amount of their holdings, (iii)
specify the method of distribution, disclosing whether all or any portion of a
distribution pursuant to such registration will be sought by means of an
underwriting, and (iv) identify any underwriter or underwriters proposed to the
Company for the underwritten portion, if any, of such registration.
(d) Upon the receipt by the Company of a Demand Registration
Request in accordance with Section 3.2(c) hereof, the Company shall promptly
give written notice of such request to all registered Holders of Registrable
Securities. The Company shall include in such notice information concerning
whether all, part or none of the distribution is expected to be made by means of
an underwriting, and, if more than one means of distribution is contemplated,
may require Holders of Registrable Securities to notify the Company of the means
of distribution of their Registrable Securities to be included in the
registration. If any Holder of Registrable Securities who is not an Initiating
Holder desires to sell any Registrable Securities owned by such Holder, such
Holder may elect to have all or any portion of its Registrable Securities
included in the Registration Statement by notifying the Company in writing (a
"Supplemental Demand Registration Request") within ten (10) days of receiving
notice of the Demand Registration Request from the Company. The right of any
Holder to include all or any portion of its Registrable Securities in a Demand
Registration Statement shall be conditioned upon the Company's having received a
timely written request for such inclusion by way of a Demand Registration
Request or Supplemental Demand Registration Request (which right shall be
further conditioned to the extent provided in this Agreement). All Holders
proposing to distribute their Registrable Securities through an underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. No Holder of
Registrable Securities shall have any right to take any action to restrain,
enjoin or otherwise delay any registration as a result of any controversy that
might arise with respect to the interpretation or implementation of the
registration rights afforded in this Agreement.
(e) If during any Interim Demand Period, the Company receives a
Demand Registration Request from an Initiating Holder satisfying the
requirements of Sections 3.1 and 3.2(b) and (c) of this Agreement, the Company,
subject to the limitations of Section 3.2(f) and Section 5 hereof, shall as soon
as practicable after receipt of the Demand Registration Request (and any timely
received Supplemental Demand Registration Requests) prepare and file a
Registration Statement with the Commission on the appropriate form to register
for sale all of the Registrable Securities that Holders of the Registrable
Securities requested to be registered pursuant to the Demand Registration
Request or in any Supplemental Demand Registration Request timely received by
the Company in accordance with Section 3(d) of this Agreement (a "Demand
Registration Statement"). Subject to Sections 5.2 and 5.3(i), the Company shall
use reasonable best efforts (i) to cause such Registration Statement to become
effective as soon as practicable and (ii) thereafter to keep it continuously
effective and to prevent the happening of an event of the kind described in
Section 5.1(c)(vi) hereof that requires the Company to give notice pursuant to
Section 5.2 hereof, until the earlier of such time as all of the Registrable
Securities included in the Registration Statement have been sold (or otherwise
disposed of by the Holder thereof) or one hundred eighty (180) days (thirty (30)
days in the event the Holders intend to distribute their Registrable Securities
through an underwriting) from the date of effectiveness of such Registration
Statement.
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(f) If at any time the Company is eligible to use Form S-3 (or any
successor form) to register the Registrable Securities, the Company shall use
its reasonable best efforts to use a Form S-3 Registration Statement for any
Demand Registration prepared and filed in connection with a Demand Registration
Request made hereunder. It is anticipated that the Registration Statement filed
with the Commission may allow for different means of distribution, including
sales by means of an underwriting as well as sales into the open market. A
determination of whether all or part of the distribution will be by means of an
underwriting shall be made by the Initiating Holders. If the Initiating Holders
desire to distribute all or part of the Registrable Securities covered by its
request by means of an underwriting, they shall so advise the Company in writing
in their initial Demand Registration Request as described in Section 3.2(c)
hereof. Selection of the lead managing underwriter in any underwriting made in
connection with a Demand Registration Request shall be made by the Company's
Board of Directors (the "Board"), subject to approval by the Initiating Holders,
which approval shall not be unreasonably withheld.
(g) In any registered offering pursuant to this Section 3 that
becomes effective under the Securities Act in which a Holder of Registrable
Securities participates, the Company shall use its reasonable best efforts to
keep available to such Holder a Prospectus meeting the requirements of Section
10(a)(3) of the Securities Act and shall file all amendments and supplements
under the Securities Act required for those purposes during the period specified
in Section 3.2(e). The Company agrees to supplement or amend such Registration
Statement, if required by the rules and regulations or instructions applicable
to the registration form utilized by the Company, or, if applicable, the rules
and regulations thereunder for shelf registrations pursuant to Rule 415
promulgated under the Securities Act, or as reasonably requested by the Holders
of a majority of the shares of Registrable Securities covered by the
Registration Statement, or the lead managing underwriter of the offering of
Registrable Securities covered by the Registration Statement.
(h) Notwithstanding any other provision of this Section 3, if the
managing underwriter advises the Company in writing that in its opinion market
factors require a limitation on the number of shares to be underwritten, then
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among the holders in proportion (as nearly as
practicable) to the respective amount of Registrable Securities each Holder
otherwise sought to have registered pursuant to its Demand Registration Request
or Supplemental Demand Registration Request (or in such other proportion as they
shall mutually agree). Registrable Securities excluded or withdrawn from the
underwriting pursuant to this Section 3.2(h) shall be withdrawn from the
registration.
3.3 Priority on Demand Registration.
(a) The Company will not include in any Demand Registration any
securities which are not Registrable Securities without the prior written
consent of the Holders of a majority of the shares of Registrable Securities
included in such registration, which consent will not be unreasonably withheld.
If the Holders of a majority of the shares of Registrable Securities included in
such registration so request or otherwise agree, the Company may, in its sole
discretion, include in any Demand Registration securities owned by the Holders
of Registrable Securities which are not Registrable Securities. If the Company
permits the
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inclusion of such securities, Holders owning such securities, in addition to the
costs set forth in Section 6.2, shall pay all incremental costs associated with
the inclusion of such securities in the Registration Statement, including but
not limited to, all increments in registration, filing fees, and NASD fees.
(b) If a Demand Registration involves an underwritten offering and
the managing underwriter or underwriters shall advise the Company in writing
that, in their opinion, the total number of Registrable Securities and, as
permitted hereunder, other securities requested to be included in such offering
exceeds the number which can be sold in such offering without an adverse effect
on the success of such offering, then the Company will include in such Demand
Registration, to the extent of the number which the Company is so advised can be
sold in such offering without having such an adverse effect: (i) first, prior to
the inclusion of any securities which are not Registrable Securities, the number
of Registrable Securities requested to be included (subject to the provisions of
Section 3.2(h) hereof if all such Registrable Securities cannot be included in
such underwritten offering); and (ii) second, all other securities which are
permitted to be included in such Registration Statement pursuant to Section
3.3(a) of this Agreement, allocated on a pro rata basis among the holders
thereof based upon the total number of shares of such other securities proposed
to be included in the registration. Notwithstanding any of the foregoing,
securities which are not Registrable Securities shall only be included in such
Demand Registration Statement to the extent that, in the opinion of the
underwriters, such securities can be sold without having an adverse effect on
the Company. Registrable Securities excluded or withdrawn from the underwriting
in accordance with this Section 3.3(b) shall be withdrawn from the registration.
4. PIGGYBACK REGISTRATIONS.
4.1 Right to Piggyback. If the Company proposes to file a
Registration Statement in connection with a public offering of any of its
securities (other than in connection with a Demand Registration and other than a
Registration Statement on Form S-4 or Form S-8, or any comparable successor form
or form substituting therefor, or any form that does not permit secondary sales,
or filed in connection with any exchange offer or an offering of securities
solely to the Company's existing stockholders or relating solely to employee
benefit plans) (a "Piggyback Registration Statement"), whether or not for sale
for its own account, then each such time the Company shall give written notice
of a proposed offering (a "Piggyback Notice") to the Holders of Registrable
Securities of its intention to effect such a registration at least twenty (20)
days prior to the anticipated filing date of such Piggyback Registration
Statement. The Piggyback Notice shall offer the Holders of Registrable
Securities the opportunity to include in such Piggyback Registration Statement
such amount of Registrable Securities as they may request ("Piggyback
Registration"). The Company will, subject to the limitations set forth in
Sections 4.3 and 4.4 of this Agreement, include in such Piggyback Registration
Statement (and related qualifications under blue sky laws) and the underwriting,
if any, involved therein, all Registrable Securities with respect to which the
Company has received a written request for inclusion therein within fifteen (15)
days after receipt of the Piggyback Notice (five (5) days if the Company gives
telephonic notice to all registered Holders of the Registrable Securities, with
written confirmation to follow promptly thereafter). Notwithstanding the above,
the Company may determine, at any time, not to proceed with such Piggyback
Registration Statement. Such determination, however, will be without prejudice
to the rights of Holders of Registrable
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Securities to demand the continuation of such Registration Statement under
Section 3 hereof. Notwithstanding the foregoing, the Holders of Registrable
Securities shall only be entitled to a total of three (3) Piggyback
Registrations during the term of this Agreement; provided, however, that a
registration shall not be deemed to be a Piggyback Registration for purposes of
this Section 4.1 (i) unless such Registration Statement with respect thereto has
become effective, (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the holders of Registrable Securities participating in such
registration and has not thereafter become effective, or (iii) if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than by
reason of a failure on the part of the Registrable Securities or Holders thereof
participating in such registration.
4.2 Underwriting Agreement. To the extent that the Holders of
Registrable Securities request Piggyback Registration of their Registrable
Securities, the Holders of Registrable Securities shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter, if any, selected by the Company for such underwriting.
4.3 Priority on Primary Registrations. If a Piggyback Registration
involves an underwritten offering and the managing underwriter or underwriters
of any such proposed public offering advises the Company in writing that, in
such managing underwriter's or underwriters' opinion, the total number or kind
of securities which such holders and any other Persons entitled to be included
in such public offering would adversely affect its ability to effect such an
offering, then the Company will include in such registration and underwriting,
to the extent of the number or kind of securities which the Company is so
advised can be sold in (or during the time of) such offering without having such
an adverse effect: (a) first, all securities proposed by the Company to be sold
for its own account; and (b) second, the Registrable Securities requested to be
included in the registration pro rata among the Holders of the Registrable
Securities requesting such registration, on the basis of the total number of
shares of such securities that each such Holder of the Registrable Securities
otherwise proposed to include in the Piggyback Registration; provided, however,
that aggregate value of Registrable Securities to be included in such Piggyback
Registration may not be reduced by application of this Section 4.3 to less than
thirty percent (30%) of the total value of all securities included in such
Piggyback Registration.
4.4 Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than Holders of Registrable Securities (the
"Other Holders"), and the managing underwriter or underwriters advises the
Company in writing that in their opinion the number and kind of securities
requested to be included in such registration exceeds the number that can be
sold in such offering, then the Company will include in such registration: (a)
first, the securities requested to be included therein by the Other Holders
requesting such registration, up to that number which, in the opinion of the
managing underwriter or underwriters, can be sold in the offering; and (b)
second, the Registrable Securities requested to be included in such registration
hereunder up to that number which, in the opinion of the managing underwriter or
underwriters, can be sold in such offering, and if all such Registrable
Securities cannot be so included, then pro rata among the Holders of Registrable
Securities requesting such registration on the basis of
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the number of shares of Registrable Securities each Holder otherwise sought to
have included in the Piggyback Registration.
4.5 No Demand Registration. Except as set forth in the penultimate
sentence of Section 4.1 above, no registration of the Registrable Securities
under this Section 4 of the Agreement shall be deemed to be a Demand
Registration.
5. REGISTRATION PROCEDURES.
5.1 Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered for sale pursuant to this
Agreement, whether pursuant to Section 3 or Section 4 hereof, the Company will
use its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will promptly:
(a) Registration Statement. (i) Prepare and file with the
Commission, as soon as practicable, a Registration Statement or Registration
Statements relating to the applicable registration on any appropriate form
(subject to the requirements of Section 3.2(f) hereof) under the Securities Act,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof, and
shall include all financial statements required by the Commission to be filed
therewith; (ii) cooperate and assist in any filings required to be made with the
NASD; and (iii) use its reasonable best efforts to cause such Registration
Statement to become effective; provided, however, that before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company will furnish to the Holders whose Registrable Securities are covered
by such Registration Statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the
reasonable review of such Holders and underwriters, and the Company will not
file any Registration Statement, or any amendment or supplement thereto (except
a Piggyback Registration or any amendment or supplement thereto) to which the
Holders of a majority of the Registrable Securities covered by such Registration
Statement, or the underwriters, if any, shall reasonably object; provided,
further, however, that the Company may discontinue any registration of
securities to be offered by the Company at any time prior to the effective date
of the Registration Statement relating thereto.
(b) Amendments and Supplements. (i) Prepare and file with the
Commission such amendments, post-effective amendments, and supplements to the
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period, or such shorter period which
will terminate when all the Registrable Securities covered by such Registration
Statement have been sold; (ii) cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and (iii) 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 method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus.
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(c) Notifications. Notify the Holders of Registrable Securities
covered thereby and the managing underwriter or underwriters, if any, promptly,
but in any event within 3 business days, and (if requested by any such Person)
confirm such advice in writing: (i) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; (iv) if at any time the representations and warranties of the
Company contemplated by Section 5.1(n) below cease to be true and correct in all
material respects; (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; or (vi) of the happening of any event which makes any material
statement made in the Registration Statement, the Prospectus, or any document
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the Registration Statement, the
Prospectus, or any document incorporated therein by reference in order to make
the material statements therein not misleading in any material respect in light
of the circumstances under which they were made.
(d) Stop-Orders and Suspensions. In the event of the issuance
of a stop-order or a suspension in the sale of the Registrable Securities, make
reasonable efforts to obtain promptly the withdrawal of any order suspending the
effectiveness of the Registration Statement or otherwise prohibiting the offer
or sale of the Registrable Securities, including those issued by state
governmental authorities.
(e) Distribution Disclosures. If requested by the managing
underwriter or underwriters or a Holder of Registrable Securities if the
Registrable Securities are being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters and
Holders of majority of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters, and with respect to
any other terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment promptly upon being notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment. The Company may require each of such Holders 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.
(f) Copies of Registration Statement. Furnish to each Holder of
Registrable Securities which are covered by a Registration Statement pursuant to
this Agreement and each managing underwriter, without charge, at least one
signed or conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference).
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(g) Copies of the Prospectus. Deliver to each Holder of
Registrable Securities which are covered by a Registration Statement pursuant to
this Agreement and the underwriters, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of the Prospectus or any amendment or supplement
thereto by the Holders of Registrable Securities and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto.
(h) Blue Sky Laws. Prior to any public offering of the
Registrable Securities, use its commercially reasonable efforts to register or
qualify or cooperate with Holders of Registrable Securities, the underwriters,
if any, and their respective counsel in connection with the registration or
qualification of, such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions (where an exemption is not
available) as such Holder or underwriter reasonably requests in writing and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not then so subject or subject the
Company to any income or sale tax in any such jurisdiction where it is not then
so subject.
(i) Removal of Legends. Cooperate with the Holders of
Registrable Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such to be in such denominations and registered in such names as the
managing underwriter or underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Other Governmental Filings. Use commercially reasonable
efforts to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Holders
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) Prospectus Amendments and Supplements. Upon the occurrence
of any event contemplated by Section 5.1(c)(vi) above, prepare and promptly file
a supplement or post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in any material respect under the
circumstances in which they were made.
(l) Securities Exchange Listings. Use reasonable best efforts
to cause all Registrable Securities covered by the Registration Statement to be
listed on each securities
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exchange or inter-dealer quotation system on which similar securities issued by
the Company are then listed, if any.
(m) Delivery of Certificates. Not later than the effective date
of the applicable Registration Statement, use its reasonable best efforts to
provide a CUSIP number for the Registrable Securities and provide the transfer
agent with printed certificates for the Registrable Securities, which are in a
form eligible for deposit with Depository Trust Company.
(n) Agreements and Further Actions. Enter into such customary
agreements (including an underwriting agreement) and take all such other
reasonable actions in connection therewith in order to facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such representations and
warranties to the Holders of Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings and covering matters including,
without limitation, those set forth in an underwriting agreement; (ii) obtain
opinions of counsel to the Company and updates thereof (which opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriter or underwriters, if any, and not reasonably objected to by the
Holders of a majority of the Registrable Securities being sold), addressed to
each Holder selling Registrable Securities and the underwriters, if any,
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by a majority of
the Holders selling such Registrable Securities and the underwriters, if any;
(iii) obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the Holders of Registrable
Securities and the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
by accountants in connection with primary underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall set forth in full the
indemnification provisions and procedures of Section 7 hereof with respect to
all parties to be indemnified pursuant to such section; and (v) the Company
shall deliver such documents and certificates as may be reasonably requested by
the Holders of a majority of the Registrable Securities being sold and the
managing underwriter or underwriters, if any, to evidence compliance with
Section 5.1(k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement or as
and to the extent required thereunder.
(o) Due Diligence Examination. Make reasonably available for
inspection by the Holders of a majority of the Registrable Securities being sold
and any managing underwriter or underwriters participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such underwriters, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with such
Registration Statement.
(p) Earning Statements. Use its reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security
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holders, earnings statements satisfying the provision of Section 11(a) of the
Securities Act no later than 45 days after the end of each 12-month period (or
90 days after the end of each 12-month period, if such period is a fiscal year
end) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten
offering, or (ii) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall cover each
of such 12-month periods.
(q) Incorporated Documents. Promptly prior to the filing of any
document which is to be incorporated by reference into the Registration
Statement or the Prospectus (after initial filing of the Registration
Statement), provide copies of such document to counsel to the Holders of
Registrable Securities included in the Registration Statement and to the
managing underwriters, if any; and make the Company's representatives available
for discussion of such document, and make such changes in such document (other
than exhibits thereto) prior to the filing thereof as counsel for such Holders
or underwriters may reasonably request.
5.2 Discontinuation of Distribution by Holders. Each Holder of
Registrable Securities agrees, by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind that would require a Prospectus amendment or supplement pursuant to
Section 5.1(k) hereof, such Holders will forthwith discontinue disposition of
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5.1(k) hereof, 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, and,
if so directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods regarding the maintenance of the
effectiveness of any Registration Statement in Section 3.2(e) hereof and the
term of this Agreement in Section 9.3 shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5.1(c)(vi) hereof to and including the date when such Holder
shall have received the copies of the supplemented or amended prospectus
contemplated by Section 5.1(k) hereof or the Advice.
5.3 Holdback Agreements and Other Limitations to Registration.
(i) Restrictions on Holders. Notwithstanding anything to the
contrary contained herein, the Company shall be entitled to postpone for a
reasonable period of time the filing of any Registration Statement under
Sections 3 or 4 hereof if (A) any other Registration Statement for an offering
of the Company's securities has been filed with the Commission prior to, or is
anticipated to be filed within thirty (30) days from, the receipt of a Demand
Registration Request, or (B) with respect to an offering of the Registrable
Securities, an audit (other than the regular audit conducted by the Company at
the end of its fiscal year) would be required by the managing underwriter, if
any, unless the Holders of Registrable Securities seeking inclusion in such
offering agree to pay the cost of such audit, or (C) the Board or a committee
thereof determines, in its reasonable judgment, that such registration would
have a
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material adverse effect upon the Company or interfere with any financing,
merger, acquisition, sale, corporate reorganization, or other material
transaction involving the Company or any of its affiliates; provided, however,
that the Company shall promptly give the Initiating Holders written notice of
such determination containing a general statement of the reasons for such
postponement and an approximation of such delay.
(ii) With respect to an underwritten public offering of shares
of Common Stock pursuant to an effective Registration Statement, each Holder of
Registrable Securities agrees, if requested by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale or
distribution of securities of the Company of the same class as the securities
included in such Registration Statement, including a sale pursuant to Rule 144
under the Securities Act (except as part of such underwritten registration),
during the ten (10) day period prior to, and during the ninety (90) day period
beginning, on the closing date of each underwritten offering made pursuant to
such Registration Statement, to the extent timely notified thereof in writing by
the Company or the managing underwriter or underwriters. The provisions of this
Section 5.3(a)(ii) shall not apply to any Holder of Registrable Securities
prevented by applicable statute or regulation from entering into such agreement;
provided, however, that any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect a public sale or
distribution of any applicable class of securities commencing on the date of
sale of such applicable class of the securities unless it has provided not less
than forty-five (45) days' prior written notice of such sale or distribution to
the underwriter or underwriters.
6. REGISTRATION EXPENSES.
6.1 Expenses Borne by Company. Except as otherwise specifically
provided in Sections 3.3 and 6.2 hereof, the Company will be responsible for
payment of all reasonable expenses incident to the Company's performance of or
compliance with this Agreement and any registration hereunder, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with the blue sky
qualifications of the Registrable Securities as the managing underwriter or the
holders of a majority of the Registrable Securities being sold may designate),
fees and expenses associated with filings required to be made with the NASD,
printing expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with Depository Trust
Company and of prospectuses), messenger and delivery expenses, and fees and
disbursements of counsel for the Company and for all independent certified
public accountants (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), underwriters
(excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities), Securities Act liability insurance
if the Company so desires and other Persons retained by the Company in
connection with such registration (all such expenses borne by the Company being
herein called the "Registration Expenses").
6.2 Expenses Borne by Holders. Each Holder of Registrable
Securities included in such registration will be responsible for payment of
brokerage discounts, commissions and other sales expenses incident to the
registration of any Registrable Shares registered hereunder.
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In addition, Holders of the Registrable Securities will be responsible for the
payment of their own legal fees if they retain legal counsel separate from that
of the Company. The Holders of the Registrable Securities included in such
registration shall be responsible for payment of their out-of-pocket expenses
and the out-of-pocket expenses of any agents who manage their account. Holders
of Registrable Securities included in such registration also shall be
responsible for payment of any underwriting fees associated with the sale of
Registrable Securities, whether pursuant to a Demand Registration or a Piggyback
Registration. Any such expenses which are common to the Holders of the
Registrable Securities included in the registration shall be divided among such
Holders pro rata on the basis of the number of shares of Registrable Securities
being registered on behalf of such Holder, or as such Holders may otherwise
agree.
7. INDEMNIFICATION.
7.1 Indemnification by Company. In the event of any registration of
any Registrable Securities under the Securities Act, the Company hereby agrees
to indemnify, to the fullest extent permitted by law, and hold harmless each
seller of the Registrable Securities hereby, its officers, directors, employees,
partners, and each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the rules and regulations
promulgated thereunder) such holder, and each other Person who participates as
an underwriter in the offering or sale of such Registrable Securities, against
all losses, claims, damages, liabilities and expenses (including reasonable
attorney's fees) in connection with defending against any such losses, claims,
damages and liabilities or in connection with any investigation or inquiry, in
each case caused by or based on any untrue or alleged untrue statement of
material fact contained in any Registration Statement in which such Registrable
Securities are registered under the Securities Act, Prospectus or preliminary
prospectus contained therein, or any amendment thereof or supplement thereto, or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company will reimburse each such indemnified person for any reasonable legal or
any other expenses reasonably incurred by them or any of them in connection with
investigating or defending any such claim (or action or proceeding in respect
thereof); provided, that the Company shall not be liable in any such case to the
extent that (i) same arises out of or is based on an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such Prospectus or preliminary prospectus, or in any amendment or
supplement thereto in reliance on and in conformity with written information
furnished to the Company by such Holder of Registrable Securities specifically
stating that it is for use in the preparation thereof, (ii) such Holder or any
underwriter or selling agents failed to deliver a copy of the Prospectus or any
amendments or supplements thereto to the Person asserting such loss, claim,
damage, liability, or expense if the Company had furnished such Holder with a
reasonably sufficient number of copies of the same, or (iii) such Holder has
violated the provisions of Section 5.2 hereof. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters at least to the same extent as provided above
with respect to the indemnification of the holders of Registrable Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a holder or any such underwriter and shall
survive the transfer of the Registrable Securities by a holder.
-16-
7.2 Indemnification by Sellers. In connection with any Registration
Statement in which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Company in writing information concerning such
Holder that is required by the provisions of applicable law and regulation to be
included in a Registration Statement as the Company reasonably requests for use
in connection with any such Registration Statement or Prospectus and, to the
extent permitted by law, each such Holder, jointly and severally, will indemnify
the Company, its directors and officers, and each Person who controls (within
the meaning of the Securities Act) the Company against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the Registration Statement, Prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder expressly for use in connection with such
Registration Statement; provided, however, that the indemnity agreement
contained in this Section 7.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of such Holder, which consent shall not be
unreasonably withheld or delayed; and provided, further, that, in no event shall
any indemnity under this Section 7.2 exceed the net proceeds from the offering
actually received by such Holder.
7.3 Assumption of Defense by Indemnifying Party. Any Person
entitled to indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (iii) in the reasonable
judgment of any such Person, based upon written advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claims on behalf of such Person). If
such defense is not assumed, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). An indemnifying party which is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which case the indemnifying party shall pay the reasonable fees and
expenses of such additional counsel or counsels. The failure of any indemnified
party to provide the notice required by Section 7.3(a) above shall not relieve
the indemnifying party under this Section 7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice.
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7.4 Contribution. If for any reason the indemnification provided
for in Sections 7.1 and 7.2 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by Sections 7.1 and 7.2, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.5 Binding Effect. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
8.1 Underwriting Arrangements. No Person may participate in any
Registration Statement hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under such underwriting arrangements.
8.2 Agreement To Provide Information. Each Holder of Registrable
Securities seeking registration of its Registrable Securities pursuant to the
terms of this Agreement, whether pursuant to Section 3 or Section 4 hereof, will
furnish promptly to the Company and any managing underwriter such information
regarding such Holder and the proposed distribution of the Registrable Shares by
such Holder as they may request and as may be required in connection with any
registration, qualification, or compliance referred to in this Agreement. In the
event that a Holder of Registrable Securities fails or refuses to provide such
information for any reason within a reasonable time after a request therefor by
the Company or the managing underwriter, if any, the Company will be relieved of
obligations to include such Registrable Securities in such registration.
9. GENERAL PROVISIONS.
9.1 No Inconsistent Agreements. The Company will not on or after
the date hereof, without the consent of the Holders of not less than fifty-one
percent (51%) of the Registrable Securities, grant to any Person rights as to
registration of securities that are superior to or on parity with the rights
granted hereunder.
9.2 Remedies. All remedies under this Agreement, or by law or
otherwise afforded to any party hereto, shall be cumulative and not alternative.
Any Person having rights under any provision of this Agreement will be entitled
to enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to
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exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
9.3 Term. Except as specifically otherwise provided herein, the
provisions of this Agreement shall terminate upon the earliest to occur of the
following: (i) no Registrable Securities remain outstanding; (ii) all of the
Registrable Securities may be transferred, sold, or otherwise disposed of in
accordance with the provisions of Rule 144(e) or 144(k) promulgated under the
Securities Act within a ninety (90) day period; or (iii) on the fourth
anniversary of the date of this Agreement.
9.4 Amendments and Waivers. Except as otherwise specifically
provided herein, this Agreement may be amended or waived only upon the prior
written consent of the Company and the Holders of a majority of the then
outstanding Registrable Securities.
9.5 Assignment. This Agreement shall be binding upon and inure to
the benefit and be enforceable by the parties hereto, and their respective
successors and permitted assigns, whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of holders of Registrable Securities also
are for the benefit of, and enforceable by, any subsequent holder of such
Registrable Securities so long as, and to the extent that, such securities
continue to be Registrable Securities and have not been sold, assigned or
otherwise transferred in violation of the Securities Purchase Agreement, the
Certificate of Designations or applicable laws or regulations.
9.6 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
9.7 Counterparts. This Agreement may be executed in multiple
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
9.8 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
9.9 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by and construed
in accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
9.10 Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
with respect of the subject matter contained
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herein. This agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9.11 Notices. Unless otherwise expressly provided herein, all
notices, demands, or other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall be
delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid), mailed to the recipient by
certified or registered mail, return receipt requested and postage prepaid, or
by telecopy and shall be deemed to have been received at the time of personal
delivery, on the next business day if delivered by overnight courier, five
business days after deposit in the mail, or at the time of transmission, if sent
by telecopy during the recipient's business hours (or otherwise on the next
business day). Such notices, demands and other communications will be sent to
each holder at the address indicated on the records of the Company and to the
Company at the address indicated below:
If to the Company: TechTeam Global, Inc.
00000 Xxxx 00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
President and Chief Executive Officer
Fax: (000) 000-0000
With copies to: TechTeam Global, Inc.
00000 Xxxx 00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
General Counsel and Secretary
Fax: (000) 000-0000
And
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
To Investor ChrysCapital II, LLC
Third Floor, Les Cascades
Xxxxx Xxxxxx Street
Port Louis, Mauritius
Attention: Xxxxxx Soreefan
Fax: 000-000-000-0000
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With a copies to: ChrysCapital Investment Advisors
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
or to such other address as such party may designate by written notice to the
other party in accordance with the provisions of this Section.
9.12 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to a party on any breach or
default of another party under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
TECHTEAM GLOBAL, INC.
By /s/ Xxxxxxx X. Xxxxx, Xx
--------------------------------------
Name Xxxxxxx X. Xxxxx, Xx
------------------------------------
Title President, Chief Executive Officer
-----------------------------------
CHRYSCAPITAL II, LLC
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name Xxxxxx Xxxxxxx
------------------------------------
Title Director
-----------------------------------
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