TWL CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
October 3, 2007, by and among TWL Corporation, a Utah corporation (the
"Company"), and the undersigned holders of common stock of the Company
together with theft qualifying transferees (the "Holders").
RECITALS:
A. The Company has sold shares of common stock ("Common Shares") to
the Holders pursuant to one or more Common Stock Subscription Agreements.
B. The sale of the Common Shares is conditional upon the extension of
the rights set forth herein, and by this Agreement the Company and the
Holders desire to provide for certain rights as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties, severally and not
jointly, hereby agree as follows:
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
1. Registration Rights.
1.1 Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(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 declaration or ordering of the effectiveness
of such registration statement.
(b) The term "Registrable Securities" means (i) any and all shares of
Common Stock of the Company issued and sold by the Company pursuant to
the Common Stock Subscription Agreement (which shares of Registrable
Common Stock are referred to herein as the "Common Shares") (ii) stock
issued in lieu of the stock referred to in (i) in any reorganization
which has not been sold to the public; or (iii) stock issued in respect
of the stock referred to in (i) and (ii) as a result of a stock split,
stock dividend, recapitalization or the like, which has not been sold
to the public.
(c) The terms "Holder" or "Holders" means any person or persons to whom
Registrable Securities were originally issued or qualifying transferees
under subsection 1.8 hereof who hold Registrable Securities.
(d) The term "Initiating Holders" means any Holder or Holders, of 40%
or greater of the aggregate of the Registrable Securities then
outstanding.
(e) The term "SEC" means the Securities and Exchange Commission.
(f) The term "Registration Expenses" shall mean all expenses incuned by
the Company in complying with subsections 1.2 and 1.3 hereof, including,
without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for
the Company, blue sky fees and expenses, and the expense of any special
audits incident to or required by any such registration (but excluding
the compensation of relar employees of the Company which shall be paid
in any event by the Company).
1.2 Company Registration,
(a) Registration. If at any time or from time to time, the Company shall
determine to register any of its securities, for its own account or the
account of any of its shareholders, other than a registration on Form
S-8 relating solely to employee stock option or purchase plans, or a
registration on Form S-4 relating solely to a SEC Rule 145 transaction,
the Company will:
(i) promptly give to each Holder written notice thereof at least 15 days
prior to the initial filing of the registration statement relating to
such offering; and
(ii) include in such registration (and compliance),
and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made within 15 days after
receipt of such written notice from the Company, by any Holder or Holders,
except as set forth in subsection 1.2(b) below.
(b) Underwriting.
(i) If the registration of which the Company 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
subsection I .2(a)(i). In such event the right of any Holder to
registration pursuant to subsection 1.2 shall be conditioned upon such
Holder"s participation in such underwriting and the inclusion of such
Holder"s Registrable Securities in the underwriting to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the other
shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
(ii) Notwithstanding any other provision of this subsection 1.2, if
the underwriter managing such public offering determines that marketing
factors require a limitation of the number of shares to be underwritten,
and (A) if such registration is the first registered offering of the sale
of the Company's securities to the general public, the underwriter may
limit the number of Registrable Securities to be included in the
registration and underwriting, or may exclude Registrable Securities
entirely from such registration and underwriting, or (B) if such
registration is other than the first registered offering of the sale
of the Company"s securities to the general public, the underwriter may
limit the amount of securities to be included in the registration and
underwriting by the Company"s shareholders; provided however, the number
of Registrable Securities to be included in such registration and
underwriting under this subsection I .2(b)(ii) shall not be reduced
to less than thirty percent (30%) of the aggregate securities included
in such registration without the prior consent of at least a majority of
the Holders who have requested their shares to be included in such
registration and underwriting. The Company shall so advise all Holders
of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the registration and underwriting
shall be allocated among Holders requesting registration in proportion,
as nearly as practicable, to the respective amounts of Registrable
Securities held by each of such Holders as of the date of the notice
pursuant to subsection 1 .2(a)(i) above; provided that the number of
shares of Registrable Securities requested to be included in such
underwriting shall not be reduced unless all other securities being
sold by shareholders other than the Holders are fast entirely excluded
from the Underwriting. If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
1 .3 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant
to this Section 1 shall be borne by the Company except as follows:
(a) The Company shall not be required to pay any fees or disbursements
of any firm of legal counsel to the Holders.
(b) The Company shall not be required to pay underwriters' fees,
discounts or commissions relating to Registrable Securities.
1.4 Regstration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. Except as
otherwise provided in subsection 1.3, at its expense the Company will;
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to 120
days or if such registration statement is on Form S-S (or any successor
to Form S-3) andprovides for sales of securities from time to time
pursuant to Rule 415 under the Securities Aetfor up to one year.
(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, without charge, to the Holders such numbers of copies of a
prospectus, including each preliminary 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) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the
Holders or any managing underwriter, provided that the Company shall not
be required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in any
such states or jurisdictions:
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) 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 or 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 satemens therein not misleading
in the light of the circumstances then existing,
(g) The Company shall:
(i) make available for inspection by a representative of the Holders,
the managing underwriter participating in any disposition pursuant to
such registration statement and one firm of attorneys designated by the
Holders (upon execution of customary confidentiality agreements
reasonably satisfactory to the Company and its counsel), at reasonable
times and in reasonable manner, financial and other records, documents
and properties of the Company that are pertinent to the conduct of due
diligence customary for an underwritten offering, and cause the
officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, underwriter
or attorney in connection with a registration statement as shall be
necessary to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act.
(ii) use its best efforts to cause all Registrable Securities covered by
a registration statement to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the
Company are then listed;
(iii) cause to be provided to the Holders that are selling Registrable
Securities pursuant to such registration statement and to the managing
underwriter if any disposition pursuant to such registration statement
is an underwritten offering, upon the effectiveness of such registration
statement, a customary "10b-5" opinion of independent counsel (an
"Opinion") and a customary "cold comfort" letter of independent
auditors (a "Comfort Letter") in each case addressed to such Holders
and managing underwriter, if any;
(iv) notify in writing the Holders that are selling Registrable
Securities pursuant to such registration statement and any managing
underwriter if any disposition pursuant to such registration statement
is an underwritten offering, (A) when the registration statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (B) of any request by the SEC or any state
securities authority for amendments and supplements to the registration
statement or of any material request by the SEC or any state securities
authority for additional information after the registration statement
has become effective, (C) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose, (D) if, between the effective date of the registration statement
and the closing of any sale of Registrable Securities covered thereby,
the representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, including this Agreement, relating to disclosure cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (B) of the happening of any event during
the period the registration statement is effective such that such
registration statement or the related prospectus contains an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make statements therein not
misleading (in the case of a prospectus, in light of circumstances under
which they were made) and (F) of any determination by the Company that a
post-effective amendment to the registration statement would be
appropriate. The Holders hereby agree to suspend, and to cause any
managing underwriter to suspend, use of the prospectus contained in a
registration statement upon receipt of such notice under clause (C),
(B) or (F) above until, in the case of clause (C), such stop order
is removed or rescinded or, in the case of clauses (B) and (F), the
Company has amended or supplemented such prospectus to correct such
misstatement or omission or otherwise.
If the notification relates to an event described in clauses (B) or
(F), the Company shall promptly prepare and furnish to such seller and
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein no misleading.
(v) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration
statement;
(vi) deliver promptly to each Holder participating in the offering and
each underwriter, if any, copies of all correspondence between the SEC
and the Company, its counsel or auditors and all memoranda relating to
discussions with the SEC and its staff with respect to the registration
statement, other than those portions of any such correspondence and
memoranda which contain information subject to attorney-client privilege
with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably
available for inspection by any Holder of such Registrable Securities
covered by such registration statement, by any underwriter, if any,
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such Holder or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company"s officers, directors and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with
such registration statement;
(vii) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(viii) provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement;
(ix) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters in the
marketing of Registrable Securities in any underwritten offering;
(x) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the
prospectus (after the initial filing of such registration statement)
provide copies of such document to counsel to the seller of Registrable
Securities and to the managing underwriter, if any, and make the
Company"s representatives reasonably available for discussion of such
document and make such changes in such document concerning such sellers
prior to the filing thereof as counsel for such sellers or underwriters
may reasonably request; and (xi) cooperate with the sellers of
Registrable Securities and the managing underwriter, if any, to
facilitate the timely preparation and delivery of certificates not
bearing any restrictive legends representing the Registrable Securities
to be sold, and cause such Registrable Securities to be issued in such
denominations and registered in such names in accordance with the
underwriting agreement prior to any sale of Registrable Securities to
the underwriters or, if not an underwritten offering, in accordance
with the instructions of the sellers of Registrable Securities at
least three business days prior to any sale of Registrable Securities.
1.5 Indemnification.
(a) The Company will indemnify and hold harmless to the fullest extent
permitted by law each Holder of Registrable Securities and each of its
officers, directors and partners, and each person controlling such
Holder, with respect to which such registration, qualification or
compliance has been effected pursuant to this Rights Agreement, and each
underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all
claims, losses, expenses, damages and liabilities (or actions in respect
thereto) arising out of or based on (i) any untrue statement (or alleged
untrue statement) of a material fact contained in any registration
statement under which such securities were registered under the
Securities Act or 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; (ii) any untrue statement (or alleged
untrue statement) of a material fact contained in any preliminary, final
or summary prospectus, offering circular or other document (including
any related registration statement, notification or the like) incident
to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statement therein, in
light of the circumstances under which they were made, or not misleading,
or (iii) any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") or any state securities law applicable to the Company or
any rule or regulation promulgated under the Securities Act, the Exchange
Act or any such state law and relating to action or inaction required
of the Company in connection with any such registration, qualification
of compliance, and will reimburse each such Holder, each of its offIcers,
directors and partners, and each person controlling such Holder, each
such underwriter and each person who controls any such underwriter,
within a reasonable amount of time after incurred for any reasonable
legal and any other expenses incurred in connection with investigating,
defending or settling any such claim, loss, 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 claim, loss, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld); and provided further, that the Company will not
be liable in any such case to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by an
instrument duly executed by such Holder or underwriter specifically for
use therein,
(b) Each Holder will, if Registrable Securities held by or issuable to
such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, severelly and not
jointly, indemnify and hold harmless to the fullest extent permitted by
law the Company, each of its directors and officers, each underwriter,
if any, of the Company"s securities covered by such a registration
statement, each person who controls the Company within the meaning of
the Securities Act, and each other such Holder, each of its officers,
directors and partners and each person controlling such Holder, against
all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement,prospectus1 offering circular or other document,
or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Company, such Holders, such
directors, officers, partners, persons or underwriters for any reasonable
legal or any other expenses incurred in connection with investigating,
defending or settling any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to the Company by the Holder in an
instrument duly executed by such Holder specifically for use therein;
provided, however, that the indemnity agreement contained in this
subsection 1.5(b) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if such settlement is
effected without the consent of the Holder, (which consent shall not be
unreasonably withheld); provided further, that the total amount for which
any Holder shall be liable under this subsection 1.5(b) shall not m any
event exceed the net proceeds received by such Holder from the sale of
Registrable Securities held by such Holder in such registration; and
provided fUrther, that a Holder will not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of
or is based on any untrue statement or omission based upon written
information furnished to the Holder by an instrument duly executed by
the Company or underwriter specifically for use therein.
(c) Each party entitled to indemnification under this subsection 1.5
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying any") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified
Party may participate in such defense at such party"s expense; and
provided further, that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the 1ndemniing Party of its
obligations hereunder, except to the extent such failure resulted in
material prejudice to the Indemnifying Party; and provided further, that
an Indemnified Party (together with all other Indemnified Parties which
may be represented without conflict by one counsel) shall have the right
to retain one separate 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.
No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
(d) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Section 1.5,
then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the
other hand, with respect to such offering of securities. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or the Indemnified Party and the
parties" relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
If, however, the allocation provided in the second preceding sentence is
notpermitted by applicable law, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party in
such proportion as is appropriate to reflect not only such relative
faults, but also any other relevant equitable considerations, The parties
hereto agree that it would not bejust and equitable if contributions
pursuant to this Section 1.5(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in the preceding
sentences of this Section 1.5(d). The amount paid or payable in respect
of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such IndemnifIed Party in coimection with
investigating or defending any such Claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 1 1(f)
of the U.S. Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this Section 1.5 to the contrary, no
Indemnifying Party (other than the Company) shall be required pursuant
to this Section 1.5(d) to contribute any amount in excess of the net
proceeds received by such Indemnifying Party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or
liabilities of the Indemnified Parties relate, less the amount of any
indemnification payment made pursuant to Section 1.5
(e) The indemnity agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any
Indemnified Party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation
made or omitted by, or on behalf of, any Indemnified Party and shall
survive the transfer of the Registrable Securities by any such party.
1.6 Information by Holder. My Holder or Holders of Registrable Securities
included in any
registration shall promptly furnish to the Company such information
regarding such Holder or Holders and the distribution proposed by such
Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to herein.
1.7 Rule 144 Reporting. With a view to making available to Holders the
benefits of certain rules and regulations of the SEC which may permit
the sale of the Registrable Securities to the public without
registration, the Company agrees at all times to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, after 90 days after the
effective date of the first registration filed by the Company for
an offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements);
and
(c) so long as a Holder owns any Registrable Securities, to furnish to
such Holder forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed by the
Company as the Holder may reasonably request in complying with any rule
or regulation of the SEC allowing the Holder to sell any such securities
without registration.
1.8 Transfer of Registration Rights. Holders" rights to cause the Company
to register their securities and keep information available, granted to
them by the Company under subsections 1.2 and 1.7, may be assigned to a
transferee or assignee of (1) at least 100,000 shares (as adjusted for
stock splits, stock dividends, recapitalizations and like events), (ii)
the transfer is in connection with the transfer of all shares of a
Holder, or (iii) to any constituent partners or members of a Holder
which is a partnership or limited liability company, or to affiliates
(as such term is defined in Rule 405 of the Securities Act) of a Holder,
provided, that (a) the Company is given written notice by
such Holder at the time of or within a reasonable time after said
transfer, stating the name and address of said transferee or assignee;
and identifying the securities with respect to which such registration
rights are being assigned; (b) the assignee or transferee of such rights
agrees in writing to be bound by the terms and conditions of this
Agreement, and (c) solely as to transfers pursuant to clause (iii)
above, any transferees or assignees agree to act through a single
representative. The Company may prohibit the transfer of any Holders"
rights under this subsection 1.8 to any proposed transferee or assignee
who the Company reasonably believes is
a competitor of the Company, or when such transfer may violate applicable
securities laws. Notwithstanding anything else in this subsection 1.8,
any Holder may transfer rights to a transferee of a Holder"s Registrable
Securities if such transferee is a partner, member or shareholder or a
retired partner, member or shareholder of such Holder.
1.10 "Market Stand-Off" Agreement, Each Holder hereby agrees that, during
the period of duration (not to exceed 90 days) specified by the Company
and an underwriter of common stock or other securities of the
Company following the effective date of an IPO or reverse merger with a
public company, it shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract
to sell (including, without limitation, any short sale), grant any
option to purchase, pledge or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period
except common stock included in such registration. In order to enforce
the foregoing covenant, the Company may impose stop- transfer
instructions with respect to the Registrable Securities of each Holder
(and the shares of securities of every other person subject to the
foregoing restriction) until the end of such period.
1.11 Delay of Registration. No Holder shall have any rights to take any
actions to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.12 Termination of Registration Rights. No holder shall be entitled to
exercise any right provided for in this Section 1 at any time when such
Holder may sell all its shares in a three (3) month period under Rule
144 of the Act.
2. Affirmative Covenants of the Comj,any. The Company hereby covenants
and agrees as follows:
2.1 Inspection. The Company shall permit each Qualified Holder, at such
Qualified Holder"s expense, to visit and inspect the Company"s
properties, to examine its books of account and records and to discuss
the Company"s affairs, finances and accounts with its officers, all at
such reasonable times as may be requested
by the Qualified Holder; provided, however, that the Company shall not be
obligated pursuant to this subsection to provide access to any
information which it reasonably considers to be a trade secret or similar
confidential information.
2.2 Termination of Information Covenants and Confidentiality of
Information. The covenants of the Company set forth in subsections 2.1
and 2.2 shall terminate as to the Qualified Holder and be of no further
force or effect when the Company first becomes subject to the periodic
reporting requirements of Section 12(g) or 15(d) of the Securities
Exchange Act of 1934, as amended. Each Qualified Holder agrees that it
will keep confidential and will not disclose or divulge any confidential,
proprietary or secret information which such Purchaser may obtain from
the Company, and which the Company has prominently marked "confidential",
"pronrietary" or "secret" or has otherwise identified as being such,
pursuant to financial statements, reports and other materials submitted
by the Company as required hereunder, unless such information is or
becomes known to the Qualified Holder from a source other than the
Company without violation of any rights of the Company, or is or becomes
publicly known, or unless the Company gives its written consent to the
Qualified Holder"s release of such information, except that no such
written consent shall be required (and the Qualified Holder shall be
free to release such information to such recipient) if such information
is to be provided to a Qualified Holder"s counsel or accountant (and the
provision of such information is directly necessary in order for such
recipient provide services to Qualified Holder), or to an officer,
director or partner of a Qualified Holder, provided that the Qualified
Holder shall inform the recipient of the confidential nature of such
information, and such recipient agrees in writing in advance of
disclosure to treat the information as confidential.
3. General.
3.1 Waivers and Amendments. With the written consent of the record
holders of at least a majority of the Registrable Securities, the
obligations of the Company and the rights of the parties under this
Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified
period of time or indefinitely), and with the same consent the Company,
when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement; provided, however, that no such modification, amendment or
waiver shall reduce the aforesaid percentage of
Registrable Securities without the consent of all of the Holders of the
Registrable Securities. Notwithstanding the foregoing, subsections 2.1
and 2.2, may be amended only with the written consent of the Company and
a majority of the shares then held by Qualified Holders. Upon the
effectuation of each such waiver, consent, agreement of amendment or
modification, the Company shall promptly give written notice thereof to
the record holders of the Registrable Securities or Qualified Holders,
as the case may be, who have not previously consented thereto in
writing. This Agreement or any provision hereof may be
changed, waived, discharged or terminated only by a statement in writing
signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, except to the extent provided in
this subsection 3.1. In addition, the Company will grant the Holders any
rights of first refusal or registration rights granted to subsequent
purchasers of the Company"s equity securities to the extent that such
subsequent rights are superior, In good faith judgment of the Company"s
Board of Directors, to those granted in connection with the transaction.
3.2 Governing Law. NOTWITHSTANDING THE PLACE WHERE THIS
AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES
EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO SUCH STATE"S PRINCIPLES OF CONFLICTS OF LAW.
IN THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE SOLE FORUM FOR
RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS THE
COURTS STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK OR THE
FEDERAL COURTS FOR SUCH STATE AND COUNTY, AND ALL RELATED APPELLATE
COURTS, THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF
SUCH COURTS AND AGREE TO SAID VENUE.
3.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
3.4 Entire Agreement Except as set forth below, this Agreement and the
other documents delivered pursuant hereto constitute the fUll and entire
understanding and agreement between the parties with regard to the
subjects hereof and thereof, and this Agreement shall supersede and
cancel all prior agreements between
the parties hereto with regard to the subject matter hereof.
3.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered by
overnight courier service or mailed by first class mail, postage
prepaid, certified or registered mail, return receipt requested,
addressed (a) if to any Purchaser, at such party"s address as set
forth in the Company"s records, or at such other address as such
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date set forth underneath
their respective signatures below.
"COMPANY"
TWL CORPORATION
a Utah corporation
By: _________________________
▇▇▇▇▇▇ 3. ▇▇▇▇▇, President and CEO
Date: 2007
"HOLDER"
Linden Growth Partners Master Fund, LP
By:
Print: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Date: October 3, 2007
