EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into as
of March 5, 1998 by and among Xxxxxxx Technologies, Inc., a Delaware
corporation ("Xxxxxxx"), and the shareholders of Phoenix Power Systems, Inc., a
California corporation (the "Company"), listed on Schedule A attached hereto
(each, a "Holder" and collectively, the "Holders").
R E C I T A L S
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X. Xxxxxxx and the Holders are parties to a Stock Purchase Agreement
dated as of March 1, 1998 (the "Purchase Agreement"), pursuant to which
Xxxxxxx will acquire all of the outstanding capital stock of the Company;
and
B. Pursuant to the Purchase Agreement, the shareholders of the
Company will receive shares of the common stock, $.10 par value, of Xxxxxxx
("Xxxxxxx Common Stock") in exchange for their securities of the Company; and
C. This Agreement is the Registration Rights Agreement referred to
in Section 12.1 of the Purchase Agreement and, pursuant thereto, is entered
into by the parties as a condition to the consummation of the transactions
contemplated by the Purchase Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Form S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by Xxxxxxx with
the SEC.
"Holder" shall mean a holder of Registrable Securities. On the date
hereof, the Holders are those persons listed on Schedule A hereto.
"Prospectus" shall mean 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 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.
"Register," "registered" and "registration" shall mean and refer to
a registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in Section 4.
"Registrable Securities" shall mean the shares of Xxxxxxx Common
Stock (i) issued pursuant to the Purchase Agreement, and (ii) issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of the shares referenced in (i) above; provided, however, that
Registrable Securities shall not include (i) any shares of Xxxxxxx Common
Stock that have previously been sold to the public, (ii) have been sold in a
private transaction (excluding the issuance of the Xxxxxxx Common Stock
pursuant to the Purchase Agreement) or (iii) are eligible for sale to the
public under Rule 144.
"Registration Statement" shall mean any registration statement of
Xxxxxxx in compliance with the Securities Act that covers Registrable
Securities pursuant to the provisions of this Agreement, including, without
limitation, the Prospectus, all amendments and supplements to such Registration
Statement, including all post-effective amendments, all exhibits and all
material incorporated by reference in such Registration Statement.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act
or any similar successor rule, as the same shall be in effect from time to
time.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
or any similar successor rule, as the same shall be in effect from time to
time.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Shareholder Representative" shall mean Xxxxxx Xxxxxxxxxxxx having
received the power of attorney of those Holders party to the Purchase
Agreement, and the power of attorney of all other Holders electing to so
appoint him.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
2. Form S-3 Registration.
(a) As promptly as practicable following the Effective Date (as
defined in the Purchase Agreement), Xxxxxxx shall use its reasonable best
efforts to file a Registration Statement on Form S-3 providing for the sale
pursuant to Rule 415 (a "Shelf Registration Statement") by all Holders
requesting registration, and/or any similar rule that may be adopted by the
SEC, of the Registrable Securities. After the Registration Statement has
become effective, Xxxxxxx will use its reasonable best efforts to keep such
Registration Statement continuously effective for 60 days.
(b) Xxxxxxx intends to file a Registration Statement in June 1998
and October 1998. If Xxxxxxx does file a Registration Statement at either
such time, Xxxxxxx shall give written notice of the proposed filing to each
Holder as soon as practicable (but in no event less than 10 days before the
anticipated filing date), and such notice shall offer the Holders the
opportunity to register such number of shares of Registrable Securities as
each such Holder may request in writing within 5 days of receipt of such
notice. If Xxxxxxx does file a Registration Statement in June 1998 or October
1998, Xxxxxxx will use its reasonable best efforts to keep each such
Registration Statement continuously effective for 60 days.
(c) As promptly as practicable after the issuance of Xxxxxxx Common
Stock as Contingent Consideration (as defined in the Purchase Agreement),
Xxxxxxx shall use its reasonable best efforts to file a Shelf Registration
Statement by all Holders requesting registration of the Registrable Securities
(including shares issued at Closing (as defined in the Purchase Agreement)
and not yet sold). After the Registration Statement has become effective,
Xxxxxxx will use its reasonable best efforts to keep such Registration
Statement continuously effective for 60 days.
(d) For the period from the date the initial shares are first
registered and tradeable until July 15, 1998, Xxxxxxx hereby guarantees a floor
price of the Xxxxxxx Common Stock issued at Closing to the Holders equal to
85.72% of the price established for Closing, subject to an overall maximum
obligation on such guarantee of $300,000. An amount equal to the difference
between the gross proceeds to Holder and the Average Price (at Closing), if
within the limits set forth in this Section, shall be paid in cash no later
than July 31, 1998. This provision shall not apply in respect of any
Contingent earnout shares, nor shall Holders be entitled to the right to
receive any cash if shares are not sold. If the registration statement is
not effective on or prior to June 15, 1998, the July 15 date shall be
extended by each day the registration statement is not effective.
(e) No Holder shall have the right to register securities under this
Agreement unless such Holder provides and/or confirms in writing prior to or
after the filing of the Registration Statement such information (including,
without limitation, information as to the number of Registrable Securities
that such Holder has sold pursuant to any such Registration Statement from
time to time) as Xxxxxxx requests in connection with such Registration
Statement.
(f) Notwithstanding the foregoing, for a period not to exceed 90
days in any 12-month period, Xxxxxxx shall not be obligated to prepare and
file, or be prevented from delaying or abandoning, the Registration Statement
required hereunder if Xxxxxxx, in its good faith judgment, reasonably believes
that the filing or maintenance of such Registration Statement would require the
disclosure of material non-public information regarding Xxxxxxx, or would have
a material and adverse effect on the market for Xxxxxxx Common Stock, and,
accordingly, that the filing thereof, at the time requested, or the offering of
Xxxxxxx Common Stock pursuant thereto, would materially and adversely affect
(A) a pending or scheduled public offering or private placement of securities
of Xxxxxxx or any of its subsidiaries, (B) an acquisition, merger,
consolidation or similar transaction by or of Xxxxxxx or any of its
subsidiaries, (C) preexisting and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions or with
respect to material strategic partnerships, or other material agreements, or
(D) the financial condition of Xxxxxxx in view of the disclosure of any
pending or threatened litigation, claim, assessment or governmental
investigation which might be required thereby.
In the event that Xxxxxxx, in good faith, reasonably believes that such
conditions are continuing after such 90-day period, it may, with the consent of
the Holders of a majority of the Registrable Securities subject (or to be
subject) to the Registration Statement, which consent shall not be unreasonably
withheld, extend such 90-day period for an additional 30 days. Any further
delay shall require the consent of the Holders of all such shares.
3. Registration Procedures. In connection with Xxxxxxx'x registration
obligations pursuant to Section 2 hereof, Xxxxxxx will use its diligent
efforts to effect such registration to permit the sale of the Registrable
Securities covered thereby in accordance with the intended method or methods of
disposition thereof, and pursuant thereto Xxxxxxx will:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its diligent efforts to cause
such Registration Statement to become effective; provided that, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, Xxxxxxx will use reasonable efforts to furnish to the Shareholder
Representative and his counsel, copies of all such documents proposed to be
filed at least five days prior thereto, and Xxxxxxx will not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which any such Holder shall reasonably object within such five day
period; provided, further, that Xxxxxxx will not name or otherwise provide any
information with respect to any Holder in any Registration Statement or
Prospectus without the express written consent of such Holder, unless required
to do so by the Securities Act and the rules and regulations thereunder;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus
as may be necessary to comply with the provisions of the Securities Act and
the rules and regulations thereunder with respect to the disposition of all
securities covered by such
Registration Statement;
(c) promptly notify the selling Holders (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 SEC for
amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, (iv) of the receipt by Xxxxxxx 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 and (v) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue 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 statements therein not misleading in light of the circumstances then
existing;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) furnish to each selling Holder, without charge, at least one
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);
(f) deliver to each selling Holder, without charge, such reasonable
number of conformed copies of the Registration Statement (and any post-
effective amendment thereto) and such number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
(and any documents incorporated by reference therein) as such Holder may
reasonably request; Xxxxxxx consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders in connection
with the offer and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto;
(g) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the selling
Holders 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 as any such selling Holder reasonably requests, and use
its reasonable efforts to keep each such registration or qualification
effective, including through new filings, or amendments or renewals, during
the period such Registration Statement is required to be kept effective
pursuant to the terms of this Agreement; and do any and all other acts or
things necessary or advisable to enable the disposition in all such
jurisdictions reasonably requested by the Holders of the Registrable
Securities covered by such Registration Statement, provided that under
no circumstances shall Xxxxxxx be required in connection therewith or as a
condition thereof to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(h) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, free of any and all restrictive legends, such certificates to be in
such denominations and registered in such names as such Holders may request;
(i) upon the occurrence of any event contemplated by Section 3(c)(v)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the 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, in light of the circumstances under
which they were made, not misleading;
(j) make generally available to the holders of Xxxxxxx'x outstanding
securities earnings statements satisfying the provisions of Section 11(a) of
the Securities Act, no later than 60 days after the end of any 12 month period
(or 90 days, if such period is a fiscal year) (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, if not sold to underwriters in such an offering,
(ii) beginning with the first month of Xxxxxxx'x first fiscal quarter
commencing after the effective date of the Registration Statement, which
statements shall cover said 12 month period;
(k) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by each Registration Statement from and
after a date not later than the effective date of such Registration Statement;
(l) use its best efforts to cause all Registrable Securities covered
by each Registration Statement to be listed, subject to notice of issuance,
prior to the date of the first sale of such Registrable Securities pursuant to
such Registration Statement, on each securities exchange on which the Xxxxxxx
Common Stock is then listed, and admitted to trading on the Nasdaq National
Market, if the Xxxxxxx Common Stock is then admitted to trading on the Nasdaq
National Market;
(m) enter into such agreements (including underwriting agreements in
customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as a majority of the Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(n) cooperate with the selling Holders and the managing underwriter
or underwriters in their marketing efforts with respect to the sale of the
Registrable Securities, including participation by Xxxxxxx management in "road
show" presentations.
Each Holder agrees that, upon receipt of any notice from Xxxxxxx of the
happening of any event of the kind described in Section 3(c)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities under
the Prospectus related to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, or until it is advised in writing by
Xxxxxxx that the use of the Prospectus may be resumed. It shall be a
condition precedent to the obligations of Xxxxxxx to take any action pursuant
to this Section 3 with respect to the Registrable Securities of any selling
Holder that such Holder shall furnish to Xxxxxxx such information regarding
itself and the Registrable Securities held by it as shall be required by the
Securities Act to effect the registration of such Holder's Registrable
Securities.
4. Registration Expenses. All expenses incident to any registration to
be effected hereunder and incident to Xxxxxxx'x performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, National Association of
Securities Dealers, Inc., stock exchange and qualification fees, fees and
disbursements of Xxxxxxx'x counsel and of independent certified public
accountants of Xxxxxxx (including the expenses of any special audit required
by or incident to such performance), expenses of any underwriters that are
customarily requested in similar circumstances by such 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, which will be borne by the
Holders), all such expenses being herein called "Registration Expenses," will
be borne by Xxxxxxx. Xxxxxxx will also pay its internal expenses, the expense
of any annual audit and the fees and expenses of any person retained by
Xxxxxxx.
5. Holders' Covenants. Each Holder covenants and agrees:
(a) To sell all Registrable Securities only through a broker-dealer
approved by Xxxxxxx in writing; and
(b) During the time Registration Statement filed pursuant to Section
2(a) is effective, no Holder shall sell more than an aggregate of up to 10,000
shares of his or her Registrable Securities on any one trading day, or more
than the greater of 10,000 shares or [20]% of his or her then current
Registrable Securities in any one month. Each Holder understands and agrees
these manner of sale requirements are entered into for the benefit of Xxxxxxx
and
the other Holders.
6. Indemnification.
(a) Indemnification by Xxxxxxx. Xxxxxxx agrees to indemnify and
hold harmless each Holder of Registrable Securities, its officers, directors,
partners and employees and each person who controls such Holder (within the
meaning of Section 15 of the Securities Act) from and against any and all
losses, claims, damages and liabilities (including any investigation, legal or
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted)
(collectively, "Damages") to which such Holder may become subject under the
Securities Act, the Exchange Act or other federal or state securities law or
regulation, at common law or otherwise, insofar as such Damages arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or any amendment or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (iii) any
violation or alleged violation by Xxxxxxx of the Securities Act, the Exchange
Act or any state securities or blue sky laws in connection with the
Registration Statement, Prospectus or preliminary prospectus or any amendment
or supplement thereto, provided that Xxxxxxx will not be liable to any Holder
to the extent that such Damages arise from or are based upon any untrue
statement or omission (x) based upon written information furnished to Xxxxxxx
by any Holder expressly for the inclusion in such Registration Statement,
(y) made in any preliminary prospectus if any Holder failed to deliver a copy
of the Prospectus with or prior to the delivery of written confirmation of
the sale by such Holder to the party asserting the claim underlying such
Damages and such Prospectus would have corrected such untrue statement or
omission and (z) made in any Prospectus if such untrue statement or omission
was corrected in an amendment or supplement to such Prospectus and such Holder
failed to deliver such amendment or supplement prior to or concurrently with
the sale of Registrable Securities to the party asserting the claim underlying
such Damages.
(b) Indemnification by Holder of Registrable Securities. Each Holder
of Registrable Securities whose Registrable Securities are sold under a
Prospectus which is a part of a Registration Statement agrees to indemnify and
hold harmless Xxxxxxx, its directors and each officer who signed such
Registration Statement and each person who controls Xxxxxxx (within the meaning
of Section 15 of the Securities Act), and each other Holder of Registrable
Securities whose Registrable Securities are sold under the Prospectus which is
a part of such Registration Statement (and such Holder's officers, directors
and employees and each person who controls such Holder within the meaning of
Section 15 of the Securities Act), under the same circumstances as the
foregoing indemnity from Xxxxxxx to each Holder of Registrable Securities to
the extent that such losses, claims, damages, liabilities or actions arise out
of or are based upon any untrue statement of a material fact or omission of a
material fact that was made in the Prospectus, the Registration Statement, or
any amendment or supplement thereto, in reliance upon and in conformity with
information relating to such Holder furnished in writing to Xxxxxxx by such
Holder expressly for use therein, provided that in no event shall the aggregate
liability of any selling Holder of Registrable Securities exceed the amount of
the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. Xxxxxxx and the
selling Holders shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as customarily furnished
by such persons in similar circumstances.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
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 and not of
the indemnifying party unless (A) the indemnifying party has agreed to pay such
fees or expenses, (B) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such
person or (C) in the reasonable judgment of such person and the indemnifying
party, based upon written advice of their respective 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 claim on behalf of
such person). If such defense is not assumed by the indemnifying party, 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). No
indemnified party will be required to consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by all claimants or plaintiffs to such indemnified party of a release
from all liability in respect to such claim or litigation. Any indemnifying
party who 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.
As used in this Section 6(c), the terms "indemnifying party", "indemnified
party" and other terms of similar import are intended to include only Xxxxxxx
(and its officers, directors and control persons as set forth above) on the one
hand, and the Holders (and their officers, directors, partners, employees,
attorneys and control persons as set forth above) on the other hand, as
applicable.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand and
the indemnified party on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or provides a lesser sum
to the indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnifying party on the one hand and the indemnified party on the
other but also the relative fault of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations. Notwithstanding
the foregoing, no Holder shall be required to contribute any amount in excess
of the amount such Holder would have been required to pay to an indemnified
party if the indemnity under Section 6(b) hereof was available. 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. The obligation of any person
to contribute pursuant to this Section 6(d) shall be several and not joint.
(e) Timing of Payments. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of
this Section 6 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) Survival. The indemnity and contribution agreements contained
in this Section 6 shall remain in full force and effect, regardless of any
investigation made by or on behalf of a participating Holder, its officers,
directors, partners, attorneys, agents or any person, if any, who controls such
Holder as aforesaid, and shall survive the transfer of such Registrable
Securities by such Holder.
7. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of
this Agreement:
(a) Xxxxxxx shall, with respect to a Registration Statement filed
pursuant to Section 2, give the Holders of such Registrable Securities so
registered, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement (other than reports and proxy statements incorporated
therein by reference and lawfully and properly filed with the SEC) and each
Prospectus included therein or filed with the SEC, and each amendment thereof
or supplement thereto; and
(b) Xxxxxxx shall give the Holders of such Registrable Securities so
registered, their underwriters, if any, and their respective counsel and
accountants such reasonable access to its books and records and such
opportunities to discuss the business of Xxxxxxx with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders or such underwriters, to
conduct a reasonable investigation within the meaning of Section 11(b)(3) of
the Securities Act.
8. Rule 144. Xxxxxxx covenants that it will use commercially reasonable
efforts to file, on a timely basis, the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as any
Holder may reasonably request (including, without limitation, compliance with
the current public information requirements of Rule 144(c) and Rule 144A), all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the conditions provided by Rule 144, or any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder,
Maxwell will deliver to such holder a written statement verifying that it has
complied with such information and requirements.
9. Specific Performance. Each Holder, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Xxxxxxx agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by United States first-class
mail, postage prepaid, sent by facsimile or delivered personally by hand or
nationally recognized courier addressed (a) if to a Holder, as indicated on
the list of Holders attached hereto as Schedule A or B, or at such other
address as such Holder or permitted assignee shall have furnished to Xxxxxxx
in writing, (b) if to the Shareholder Representative, to the address set forth
in the Purchase Agreement or (c) if to Xxxxxxx, at 0000 Xxx Xxxx Xxxxx, Xxx
Xxxxx, XX 00000; Attention: Xxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx; Facsimile
(000) 000-0000, or such other address provided to the Holders in writing. All
such notices and other written communications shall be effective on the date of
mailing, facsimile transfer or delivery.
11. Successors and Assigns: Assignment of Rights. The rights and benefits
of a Holder hereunder may not be assigned to a transferee or assignee, without
the consent of Xxxxxxx; provided, however, that, no later than the 10th day
prior to the filing of the Registration Statement under Section 2 hereof, the
rights and benefits of a Holder hereunder may be transferred in connection with
a transfer or assignment of any Registrable Securities held by such Holder (i)
by gift to immediate family members of such Holder, or trusts or other entities
for the sole benefit thereof, or (ii) by gift to any entity in which such
Holder, his or her immediate family members, or trusts or other entities for
the sole benefit thereof beneficially own all of the voting securities;
provided, however, that in each case, the transferee executes an instrument
pursuant to which the transferee agrees to be bound by the terms and conditions
hereof as a Holder, and such other documents related to the Purchase Agreement
as Xxxxxxx or its counsel may reasonably require, after which, such transferee
shall be deemed a "Holder" hereunder. Any transfer of Registrable Securities,
and rights hereunder, shall be subject to compliance with applicable securities
laws and the restrictions contained in the Investment Letter executed by each
Holder pursuant to the Purchase Agreement.
12. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
13. Attorney's Fees and Costs. If any legal action is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover its
reasonable attorneys' fees and other costs incurred in such proceeding, in
addition to any other relief to which it may be entitled.
14. Entire Agreement; Amendment; Waiver. This Agreement, the Purchase
Agreement and the other agreements contemplated thereby constitute the full and
entire understanding and agreement among the parties with regard to the
subjects hereof and thereof. Without limiting the foregoing, the rights of
the Holders to registration pursuant to the terms of this Agreement shall be
subject to the limitations on resale contained in the Investment Letter (as
defined in the Purchase Agreement). Neither this Agreement nor any term hereof
may be amended, waived,
discharged or terminated, except by a written instrument signed by Xxxxxxx and
the Shareholder Representative and any such amendment, waiver, discharge or
termination shall be binding upon all the parties hereto, but in no event
shall the obligation of any party hereto be materially increased, except upon
the written consent of such party.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without giving effect to
principles of conflicts of laws thereof.
17. No Third Party Beneficiaries. The covenants and agreements set forth
herein are for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and such covenants and agreements shall not
be construed as conferring, and are not intended to confer, any rights or
benefits upon any other persons.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXX: XXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President - Finance
and Administration and
Chief Financial Officer
SHAREHOLDER
REPRESENTATIVE:
/s/ Xxxxxx Xxxxxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxxxxx
SCHEDULE A
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SCHEDULE OF HOLDERS
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxxxxxx
