EXHIBIT 2.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
October __, 1999 by and among Xxxxx.xxx Inc., a Delaware corporation (the
"Company"), and those holders of the Company's Common Stock whose names are set
forth on Exhibit A attached hereto (collectively, the "Shareholders").
RECITALS
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WHEREAS, the Company, Xxxxx.xxx Inc., a Delaware corporation and the
Shareholders have entered into a Sale and Purchase Agreement dated 11 October
1999 (the "Purchase Agreement"), which provides, among other things, for the
acquisition of the issued share capital of Apion Telecoms Group Limited
("Apion") in exchange for the issuance by the Company to the Shareholders of
shares of the Company's Common Stock in consideration of the shares of Apion
sold by the Shareholders to Xxxxx.xxx Inc.;
WHEREAS, as a condition to the completion under the Purchase Agreement, the
Shareholders desire to obtain and the Company has agreed to grant certain
registration rights to the Shareholders with respect to the Xxxxx.xxx Inc.
Shares;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
Section 1. Registration Rights.
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1.1 Definitions. As used in this Agreement:
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(a) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act"),
and the subsequent declaration or ordering of the effectiveness of such
registration statement.
(b) The term "Registrable Securities" means:
(i) the Xxxxx.xxx Inc. Shares; and
(ii) any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Xxxxx.xxx Inc. Shares, excluding in
all cases, however, any Registrable Securities sold by a person in a transaction
in which his or her rights under this Agreement are not assigned;
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provided, however, that Common Stock or other securities shall only be treated
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as Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale.
(c) The number of shares of "Registrable Securities then
outstanding" shall mean the number of shares of Common Stock outstanding which
are Registrable Securities, plus the number of shares of Common Stock which are
Registrable Securities issuable pursuant to then exercisable or convertible
securities.
(d) The term "Holder" means any holder of outstanding
Registrable Securities who, subject to the limitations set forth in Section 1.7
below, acquired such Registrable Securities in a transaction or series of
transactions not involving any registered public offering.
(e) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(f) The term "Xxxxx.xxx Inc. Shares" means 1,189,906 shares of
Xxxxx.xxx Inc. Common Stock by the Company held by the Shareholders being the
Xxxxx.xxx Inc. Shares, other than the Escrow Shares (as such term is defined in
the Purchase Agreement) issued to the Shareholders pursuant to the Acquisition
Agreement in consideration for the Acquisition of the Apion Shares, all of which
(excluding the Escrow Shares) are listed against each such Shareholder's name on
Exhibit A.
(g) The term "Senior Registration Rights Agreement" means that
certain Fourth Amended and Restated Investor Rights Agreement effective as of
March 12, 1999 among the Company, the Series A Investors, the Series B
Investors, the Series C Investors, the Series D Investors and the Series E
Investors (as such terms are defined therein), as the same may be amended from
time to time.
1.2 Form S-3 Registration. In case the Company shall, on or after
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the date on which the Company first becomes eligible to file a Registration
Statement on Form S-3, receive from any Holder or Holders owning in the
aggregate at least thirty percent (30%) of the Registrable Securities a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
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(b) promptly use its reasonable best efforts to effect such
registration and all such qualifications and compliances as may be reasonably so
requested and as would permit and facilitate the sale and distribution of all or
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within 30 days after receipt of such
written notice from the Company; provided, however, that the Company shall not
be obligated to effect any such registration, qualification or compliance,
pursuant to this Section 1.2:
(i) if Form S-3 is not available for such offering by the
Holders;
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000;
(iii) if the Company, within ten (10) days of the receipt of
the request of the Shareholders gives notice of its bona fide intention to
effect the filing of a registration statement with the Commission within ninety
(90) days of receipt of such request;
(iv) during the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on the date 180 days immediately following the effective date of, any
registration statement pertaining to securities of the Company, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective;
(v) if the Company shall furnish to the Shareholders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its Shareholders for such Form S-3 Registration
to be effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a period of not more
than 120 days after receipt of the request of the Shareholders under this
Section 1.2; provided, however, that the Company shall not utilize this right
more than once in any twelve month period;
(vi) if the Company has, since the date of this Agreement,
already filed one registration statement on Form S-3 either for the Holders
pursuant to this Section 1.2 or for any other holders of Company Securities
pursuant to any other registration rights agreement (provided Section 2.10 of
this Agreement was complied with); or
(vii) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
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(c) Subject to the foregoing, the Company shall file a
registration statement on Form S-3 covering the Registrable Securities and other
securities so requested to be registered promptly after receipt of the request
or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.2, including (without limitation)
all registration, filing, qualification, printer and accounting fees shall be
borne by the Company. The Company shall not be required to pay any underwriters'
or brokers' fees, discounts or commissions relating to the Registrable
Securities, or the fees or expenses of separate counsel to the selling Holders.
1.3 Obligations of the Company. When required under Section 1.2 to
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effect the registration of any Registrable Securities, the Company shall, as
soon as reasonably possible:
(a) Prepare and file with the SEC a registration statement on
Form S-3 with respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective, and keep such
registration statement effective for 90 days (extended by the duration of any
period in which the Suspension Right described below is in effect) or such
shorter period during which the Holders complete the distribution described in
the registration statement relating thereto, whichever first occurs.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
Notwithstanding any other provision of this Agreement, the Company shall have
the right at any time to require that all Holders suspend further open market
offers and sales of Registrable Shares whenever, and for so long as, in the
reasonable judgment of the Company after consultation with counsel there is or
may be in existence material undisclosed information or events with respect to
the Company (the "Suspension Right"). In the event the Company exercises the
Suspension Right, such suspension will continue for the period of time
reasonably necessary for disclosure to occur at a time that is not detrimental
to the Company and its stockholders or until such time as the information or
event is no longer material, each as determined in good faith by the Company
after consultation with counsel. The Company will promptly give the Holders
notice of any such suspension and prompt notice of the cessation of
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such suspension. The Company will use all reasonable efforts to minimize the
length of the suspension.
1.4 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.5 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any final prospectus contained therein or any amendments or
supplements 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 not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
state securities law; and the Company will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.5(a), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.5(a) 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 the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by such Holder or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the 1934 Act,
any other Holder selling securities in such registration statement and any
controlling person of any such other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Securities Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any Violation, in each
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case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.5(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.5(b) 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 the Holder, which consent shall not be unreasonably
withheld; provided that in no event shall any indemnity under this subsection
1.5(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.5, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.5.
(d) If the indemnification provided in this Section 1.5 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
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(e) The obligations of the Company and Holders under this
Section 1.5 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.6 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) make available to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
1.7 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee of all of such Holder's
Registrable Securities provided that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act. Within a
reasonable time after such transfer the Holder shall furnish written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned. The foregoing
share limitation shall not apply, however, to transfers by a Holder to any
wholly-owned subsidiary or constituent Holders (if a corporation), partner of
the Holder (if a partnership), or any spouse, son or daughter of the Holder (if
an individual), or to trustees of a trust the beneficiaries of which include the
Holder and any spouse, son or daughter of the Holder, provided that all such
transferees or assignees agree in writing to appoint a single representative as
their attorney in fact for the purpose of receiving any notices and exercising
their rights under this Section 1.
1.8 Termination of Registration Rights. The rights granted under
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this Section 1 shall terminate upon the earlier of (a) two (2) years following
the date of this Agreement, or (b) with respect to any Holder, at such time as
such Holder may be eligible to sell all of such Holder's Registrable Securities
in a three-month period pursuant to Rule 144 (or such successor rule as may be
adopted) or another exemption from the registration requirements of the
Securities Act provided that the Company is then and continues to be in
compliance with the current public information requirements of Rule 144(c) (or
such successor provision as may be adopted).
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For any offer or sale of any of the Registrable Shares by a
Holder in a transaction that is not exempt under the Securities Act, the Holder,
in addition to complying with any other federal securities laws, shall deliver a
copy of the final prospectus (or amendment of or supplement to such prospectus)
of the Company covering the Registrable Shares in the form furnished to the
Holder by the Company to the purchaser of any of the Registrable Shares on or
before the settlement date for the purchase of such Registrable Shares.
Section 2. Miscellaneous.
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2.1 Assignment. Subject to the provisions of Section 1.7 hereof, the
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terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
2.2 Third Parties. Nothing in this Agreement, express or implied, is
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intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
2.3 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California, as applied to agreements made and
performed in California by residents thereof.
2.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
2.5 Notices.
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(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith shall be given to or made upon
the respective parties as follows:
To the Company: Xxxxx.xxx, Inc.
000 Xxxxxxxxxx Xxxxx,
Xxxxxxx Xxxx, XX 00000, XXX
Attn: The General Counsel
To a Shareholder: At such Shareholder's address as set forth on the
signature pages hereto (or at such other address as is
notified to the Company in writing).
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing, and shall be sent
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by airmail, return receipt requested, reputable overnight courier or by telex or
fax with confirmation of receipt, and shall be deemed to be given or made when
receipt is so confirmed.
(c) Any party may, by written notice to the other, alter its
address or respondent, and such notice shall be considered to have been given
ten (10) days after the airmailing, telexing, telecopying or delivery thereof.
2.6 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
2.7 Amendment and Waiver. Any provision of this Agreement may be
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amended with the written consent of the Company and the Holders of at least a
majority of the outstanding Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities, and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holders of
Registrable Securities, or agree to accept alternatives to such performance,
without obtaining the consent of any holder of Registrable Securities. Each
Shareholder acknowledges that by the operation of Section 2.7 hereof, the
holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate all rights pursuant to this Agreement.
2.8 Rights of Holders. Each Holder of Registrable Securities shall
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have the absolute right to exercise or refrain from exercising any right or
rights that such Holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such Holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
2.9 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
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2.10 Other Registrations.
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(a) Notice of Registration. If at any time or from time to time
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the Company shall determine to register any shares of its Common Stock for the
account of a security holder or holders, other than (A) a registration relating
to employee benefit or equity incentive plans, (B) a registration relating
solely to a Rule 145 transaction, or (C) a registration on any registration form
that does not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) use its best efforts to include in such registration
(and any related qualification under blue sky laws or other compliance), except
as set forth in Section 2.10(b) below, and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within twenty (20) days after receipt of such written notice from the Company by
any Holder.
(b) Underwriting. If the registration of which the Company
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gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.10(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.10 shall be conditioned upon such Holder's
participation in such underwriting, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 2.10, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration. In addition, in no
event shall any Registrable Securities be included in a registration if such
inclusion would diminish the shares or other securities to be included by the
stockholders who are parties to the Senior Registration Rights Agreement.
The Company shall so advise all Holders and other holders distributing
their securities through such underwriting, and the number of shares of
Registrable Securities or other securities that may be included in the
registration and underwriting shall be first allocated among those stockholders
who are parties to the Senior Registration Rights Agreement in accordance with
such agreement, and then to the Holders in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement. To facilitate the allocation of
shares in accordance with the above provisions, the Company may round the number
of shares allocated to any Holder or holder to the nearest 100 shares.
(c) Right to Terminate Registration. The Company shall have the
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right to terminate or withdraw any registration initiated by it under this
Section 2.10 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
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2.11 Next Underwritten Public Offering. With respect to the next
---------------------------------
underwritten public offering of Common Stock of the Company pursuant to a
Registration Statement on Form S-1 proposed to be filed by the Company following
the date of this Agreement (the "S-1 Registration") the Company has obtained
waivers from stockholders who are parties to or beneficiaries under the Senior
Registration Rights Agreement to permit the Shareholders to, collectively, have
such of the shares of the Company's Common Stock received by them upon the
closing of the Purchase Agreement as represents fifteen and four tenths percent
(15.4%) of the total number of shares of the Common Stock registered in such S-1
Registration to be included in the S-1 Registration (excluding any shares
issuable pursuant to any overallotment option granted to the underwriters in
such offering) as "firm" shares rather than pursuant to the overallotment option
and, in the event of the exercise of the overallotment option, to participate
rateably in such overallotment. In the event that the S-1 Registration is of
less than four million (4 million shares), the Company undertakes to increase
the percentage of shares registrable in the S-1 Registration by the Holders by
such amount as necessary to enable Xxxx Xxxxxxx to sell all his Xxxxx.xxx Inc.
Shares. This right shall be personal to Xx Xxxxxxx shall not increase the
entitlement of any other Holder to participate in the S-1 Registration. In the
event that the Company proceeds with the S-1 Registration, the Company will
notify the Holders periodically of the status of, and allow them to participate
in, the S-1 Registration to the extent set forth in the preceding sentence pro
rata to their holdings of Registrable Securities; provided that if any Holder
shall participate in such registration, all provisions of Sections 1.3, 1.4,
1.5, 2.5 and 2.10 of this Agreement to the extent applicable shall be in effect
with regard to such registration and each Holder's participation therein. It
shall be a condition of inclusion in the S-1 Registration that each Holder
executes and delivers to the Company all documents and makes such confirmation
reasonably requested by the Company as are applicable to the S-1 Registration.
Nothing in this Section 2.11 shall affect the Company's right to withdraw any
such registration at any time.
2.12 Senior Registration Rights Agreement. Nothing in this
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Agreement shall result in any Shareholder receiving any rights which are
inconsistent with the Senior Registration Rights Agreement. If there is any
conflict between this Agreement and the Senior Registration Rights Agreement,
the provisions of the Senior Registration Rights Agreement shall prevail.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
XXXXX.XXX INC.
By:__________________________________
Title:_______________________________
SHAREHOLDERS:
XXXXXXX XXXXXX
By:__________________________________
Address: 0 Xxxxxxxxxx
Xxxxxxxx Xxxx
Xxxxxx, Xx. Xxxxxx
XXXXXXXX XXXXX
By:__________________________________
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxx 00
XXXXXX XXXXXXXXXX
By:__________________________________
Address: 0 Xxxxxxxx
Xxxxxxxxxxx
Xxxxxx 15
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ENTERPRISE IRELAND LIMITED
By:__________________________________
Address: Xxxxxx Xxxxx
Xxxxxx Xxxxx
-00-
XXXX XXXXXXX
By:__________________________________
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxx 00
XXXXX XXXXXX
By:__________________________________
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx
Xxxxxxx
XXXXXXX XXXXXXXXX
By: _________________________
Address: 00 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Xxxxxxx
XXXXXXX XXXXXX
By: _________________________
Address: 00 Xxxxxxxxxxx Xxxx
Xxxxxxxx
Xx. Xxxx
XXXX XXXXXXXXX
By: _________________________
Address: 00 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxxx
Xxxxxxx
-14-
EXHIBIT A
SHAREHOLDERS
NAME SHARES
---- ------
Total
-15-
