REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
February 19, 1998, by and among Ancor Communications, Incorporated, a
corporation duly incorporated and existing under the laws of the State of
Minnesota ("Company"), Dunwoody Brokerage Services, Inc. ("Dunwoody"), a Georgia
limited liability company, and the subscribers (hereinafter referred to as
"Subscribers") to the Company's Offering ("Offering") of up to Eleven Million
Dollars ($11,000,000) of Series C Preferred Stock (the "Preferred Stock")
pursuant to the Regulation D Subscription Agreements between the Company and
each of the Subscribers ("Subscription Agreements").
1. DEFINITIONS. For purposes of 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 or
similar document in compliance with the Securities Act of 1933 (the "Act"), and
pursuant to Rule 415 under the Act or any successor rule, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) For purposes hereof, the term "Registrable Securities" means the
shares of the Company's Common Stock together with any capital stock issued in
replacement of, in exchange for or otherwise in respect of such Common Stock
(the "Common Stock"), issuable or issued upon (i) conversion of the Preferred
Stock, and (ii) exercise of the Warrants to purchase Common stock issued to
Dunwoody in connection with the Offering (the "Placement Agent Warrants", also
referred to as the "Warrants"), by Dunwoody or any subsequent Holder of the
Warrant or portion thereof.
Notwithstanding the above:
1. Common Stock which would otherwise be deemed to be Registrable
Securities shall not constitute Registrable Securities if and to the
extent that those shares of Common Stock may be resold in a public
transaction pursuant to Rule 144(k) under the Act; and
2. any Registrable Securities resold in a public transaction shall
cease to constitute Registrable Securities.
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock which have been
issued or are issuable upon conversion of the Preferred Stock and exercise of
the then outstanding Warrants at the time of such determination;
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities;
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(e) The term "Filing Date" means the date which is twenty (20) days
after the Last Closing Date (as defined in the Certificate of Designation of the
Series C Preferred Stock) and the term "Due Date" means the date which is ninety
(90) days after such Last Closing Date.
2. REQUIRED REGISTRATION.
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(a) The Company shall use its best efforts to file, by the Filing
Date, a registration statement ("Registration Statement") on Form S-3 (or other
suitable form, at the Company's discretion, but subject to the reasonable
approval of the Holders), covering no more than 120,000 shares for holders of
piggyback rights at the time of this Agreement, other than in connection with
the Series B Preferred Stock, plus covering the resale of all of the Registrable
Securities, which Registration Statement, to the extent allowable under the
Securities Act and the Rules promulgated thereunder (including Rule 416), shall
state that such Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon conversion of the
Preferred Stock and the exercise of the Warrants (i) to prevent dilution
resulting from stock splits, stock dividends or similar transactions or (ii) by
reason of changes in the conversion price of the Preferred Stock or the exercise
price of the Warrants in accordance with the terms thereof, as the case may be.
Such Registration Statement shall initially cover the number of shares issuable
upon exercise of the Warrants plus at least Two Million Six Hundred Fifty
Thousand (2,650,000) shares of Common Stock. The Company shall use its best
efforts to have the Registration Statement declared effective as soon as
possible. In the event that the Company is notified at any time by a Holder of
Registrable Securities relating to the Preferred Stock ("Registrable Conversion
Shares") that the Registration Statement does not cover a sufficient number of
shares of Common Stock to effect the resales of a number of shares of Common
Stock equal to at least (i) one hundred fifty percent (150%) of the number of
shares of Common Stock issuable to such Holder upon conversion of all of such
Holder's outstanding Preferred Stock (without regard to any limitations on
conversions) for any five (5) business days out of any thirty (30) consecutive
business days or (ii) one hundred and twenty-five percent (125%) of the number
of shares of Common Stock issuable to such Holder upon conversion of all of such
Holder's outstanding Preferred Stock (without regard to any limitations on
conversions) for any two (2) consecutive business days (a "Registration
Shortfall"), the Company shall, within seven (7) business days, amend the
Registration Statement or file a new Registration Statement (an "Amended" or
"New" Registration Statement, respectively), as appropriate, to add such number
of additional shares as would be necessary to effect the resales of a number of
shares of Common Stock equal to at least two hundred percent (200%) of the
number of shares of Common Stock issuable to each Holder upon conversion of all
outstanding Preferred Stock (without regard to any limitations on conversions).
If for any reason or for no reason (including by exercise of the Company's
rights pursuant to Section 6 hereof), the Registration Statement is not declared
effective under the Securities Act on or prior to the Due Date or is not
available for resales of all Registrable Securities at anytime thereafter
("Registration Failure Period"), the Company shall make payments to each Holder
("Registration Failure Payments") which shall accrue at the rate of 2% per
month, accruing daily, on each Holder's "Illiquid Amount", as defined below, for
the first 30 days of such Registration Failure Period and 3% per month, accruing
daily, on the Illiquid Amount, for the remainder of such Registration Failure
Period, payable (i) in shares of Common Stock ("Additional Shares"), valued at
the Closing Bid Price
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(as defined in the Certificate of Designation) of the Common Stock on the
business day immediately prior to the delivery of the Additional Shares to the
extent that such Registration Failure Period occurred during the first 90 days
after the Due Date or (ii) in cash, to the extent that such Registration Failure
Period occurred following the 90th day after the Due Date, in each case payable
within 5 business days of the last day of the calendar month in which they
accrue (provided, however, that a Holder may elect to receive any cash
Registration Failure Payments in Common Stock in such Holder's sole discretion.
For purposes hereof, the Holder's "Illiquid Amount" shall mean:
the difference of (a) the aggregate Total Value (as defined in the
Certificate of Designations) of all of Holder's outstanding Preferred Stock
minus (b) if such Registration Failure Payments accrued more than 1 year
after the Last Closing Date but less than 2 years after the Last Closing
Date, the 144 Dollar Amount (as defined below). For purposes of this
Section 2(a) "144 Dollar Amount" shall mean the product of (x) 1% of the
number of shares of Common Stock outstanding as shown by the most recent
report or statement publicly released by the Company and (y) the average of
the Conversion Prices (as defined in the Certificate of Designations) on
the trading days during the Registration Failure Period with respect to
which such payments have accrued.
Notwithstanding the above, no Registration Failure Payments shall accrue
prior to the Due Date.
Such Additional Shares shall also be deemed "Registrable Securities" as defined
herein. The Company covenants to use its best efforts to use Form S-3 for the
registration required by this Section during all applicable times contemplated
by this Agreement.
In the event the Company is informed by the SEC that the SEC will not declare
the Registration Statement effective, or the Company's board of directors
determines in its good faith judgment that the Registration Statement can not be
made effective, Registration Failure Payments shall cease to accrue and the
Holders shall be entitled to the remedies contained in Section 12 of the
Certificate of Designation for a Triggering Event (as defined therein).
(b) The Registration Statement shall be prepared as a "shelf"
registration statement under Rule 415, and shall be maintained effective until
all Registrable Securities cease to exist.
(c) The Company represents that it is presently eligible to effect the
registration contemplated hereby on Form S-3 and will use its best efforts to
continue to take such actions as are necessary to maintain such eligibility.
(d) Notwithstanding anything contained herein to the contrary, the
Company shall not be required to register additional shares hereunder if such
shares are not available for issuance as a result of the unavailability of
authorized but unreserved shares of Common Stock.
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(e) The initial number of Registrable Conversion Shares included in
any Registration Statement and each increase in the number of Registrable
Conversion Shares included therein shall be allocated pro rata among the Holders
of Registrable Conversion Shares based on the number of Registrable Conversion
Shares held by each Holder at the time the Registration Statement covering such
initial number of Registrable Conversion Shares or increase thereof is declared
effective by the SEC. In the event that a Holder of Registrable Conversion
Shares sells or otherwise transfers any of such person's Registrable Conversion
Shares (other than pursuant to the Registration Statement), each transferee
shall be allocated a pro rata portion of the then remaining number of
Registrable Conversion Shares included in such Registration Statement for such
transferor. Any shares of Common Stock included in a Registration Statement and
which remain allocated to any person which ceases to hold any Registrable
Securities shall be allocated to the remaining of Holders of Preferred Stock,
pro rata based on the number of Registrable Conversion Shares then held by such
Holder.
3. PIGGYBACK REGISTRATION. If the Registration Statement described
----------------------
in Section 2 is not effective and if (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders other than the Holders) any of its Common Stock
under the Act in connection with the public offering of such securities solely
for cash (other than a registration relating solely for the sale of securities
to participants in a Company stock plan or a registration on Form S-4
promulgated under the Act or any successor or similar form registering stock
issuable upon a reclassification, upon a business combination involving an
exchange of securities or upon an exchange offer for securities of the issuer or
another entity), the Company shall, at such time, promptly give each Holder
written notice of such registration (a "Piggyback Registration Statement"). Upon
the written request of each Holder given by fax within ten (10) days after
mailing of such notice by the Company, the Company shall cause to be included in
such registration statement under the Act all of the Registrable Securities that
each such Holder has requested to be registered ("Piggyback Registration") to
the extent such inclusion does not violate the registration rights of any other
security holder of the company granted prior to the date hereof; nothing herein
shall prevent the Company from withdrawing or abandoning the registration
statement prior to its effectiveness. The election of initiating Holders to
participate in a Piggyback Registration Statement shall not impact the amount
payable to investors pursuant to Section 2(a) herein except that the Late
Registration Payment shall cease to accrue as of the date of effectiveness of
the Piggyback Registration Statement.
4. LIMITATION ON OBLIGATIONS TO REGISTER.
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(a) In the case of a Piggyback Registration involving an underwritten
public offering by the Company, if the managing underwriter determines and
advises in writing that the inclusion in the registration statement of all
Registrable Securities proposed to be included would interfere with the
successful marketing of the securities proposed to be registered by the Company,
then the number of such Registrable Securities to be included in the
registration statement, to the extent such Registrable Securities may be
included in such Piggyback Registration Statement, shall be allocated among all
Holders who had requested Piggyback Registration pursuant to the terms hereof,
in the proportion that the number of Registrable
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Securities which each such Holder, including Dunwoody, seeks to register bears
to the total number of Registrable Securities sought to be included by all
Holders, including Dunwoody. If required by the managing underwriter of such an
underwritten public offering, the Holders shall enter into a reasonable
agreement limiting the number of Registrable Securities to be included in such
Piggyback Registration Statement and the terms, if any, regarding the future
sale of such Registrable Securities.
(b) In the event the Company believes that shares sought to be
registered under Section 2 or Section 3 by Holders do not constitute
"Registrable Securities" by virtue of Section 1(b) of this Agreement, and the
status of those shares as Registrable Securities is disputed, the Company shall
provide, at its expense, an Opinion of Counsel, reasonably acceptable to the
Holders of the Securities at issue (and satisfactory to the Company's transfer
agent to permit the sale and transfer) that those securities may be sold
immediately, without volume limitation without registration under the Act, by
virtue of Rule 144 or similar provisions.
5. OBLIGATIONS OF THE COMPANY. Whenever required under this
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Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become effective
and to remain effective for the applicable period.
(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
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,
including a 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 of
the Registrable Securities covered by such registration statement, 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.
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(f) As promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Securities of the happening of any event of
which the Company has knowledge, as a result of which the prospectus included in
the 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, in light of the circumstances under
which they were made, not misleading, and subject to Section 6 promptly prepare
and file a supplement or amendment to the registration statement to correct such
untrue statement or omission, and deliver a number of copies of such supplement
or amendment to each Holder as such Holder may reasonably request.
(g) Provide Holders with written notice within one (1) business day
of the date that a registration statement and any amendment thereto registering
the resale of the Registrable Securities is declared effective by the SEC, and
the date or dates when the Registration Statement is no longer effective.
(h) Provide Holders and their representatives the opportunity to
conduct a reasonable due diligence inquiry of Company's pertinent financial and
other records and make available its officers, directors and employees for
questions regarding such information as it relates to information contained in
the registration statement.
(i) Provide Holders and their representatives the opportunity to
review the registration statement and all amendments thereto a reasonable period
of time prior to their filing with the SEC if so requested by Holder in writing.
(j) Provide each Holder with prompt notice of the issuance by the SEC
or any state securities commission or agency of any stop order suspending the
effectiveness of the registration statement or the initiation of any proceeding
for such purpose. The Company shall use its best efforts to prevent the
issuance of any stop order, and, if any is issued, to obtain the removal thereof
at the earliest possible date.
(k) Use its best efforts to list the Registrable Securities covered
by the registration statement with all securities exchanges or markets on which
the Common Stock is then listed and prepare and file any required filing with
the NASD or any such exchange or market.
6. BLACK OUT. In the event that, during the time that the
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Registration Statement is effective, the Company reasonably determines, based
upon advice of counsel, that due to the existence of material non-public
information, disclosure of such material non-public information would be
required to make the statements contained in the Registration Statement not
misleading, and the Company has a bona fide business purpose for preserving as
confidential such material non-public information, the Company shall have the
right to suspend the use of the Registration Statement (a "Registration Black
Out"), and no Holder shall be permitted to sell any Registrable Securities
pursuant thereto, until such time as such suspension is no longer required
hereunder; provided, however, that such time shall not exceed a period of sixty
(60) days. As soon as such suspension is no longer required hereunder, the
Company shall, if required, promptly, but in no event later than the date the
Company files any documents with the Securities
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and Exchange Commission ("SEC") referencing such material information, file with
the SEC an amendment to the Registration Statement disclosing such information
and use its best efforts to have such amendment declared effective as soon as
possible.
In the event that the use of the Registration Statement is suspended
by the Company, the Company shall promptly notify all Holders whose securities
are covered by the Registration Statement of such suspension, and shall promptly
notify each such Holder as soon as use of the Registration Statement may be
resumed. Notwithstanding anything to the contrary, the Company shall cause the
Transfer Agent to deliver unlegended shares of Common Stock to a transferee of a
Holder in accordance with the terms of the Certificate of Designation in
connection with any sale of Registrable Securities with respect to which such
Holder has entered into a contract for sale prior to receipt of notice of such
Registration Black Out and for which such Holder has not yet settled. The
Company shall be entitled to effect no more than one Registration Black Out
during any twelve (12) month period.
7. FURNISH INFORMATION. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement with
regard to each selling Holder that such selling Holder shall timely furnish to
the Company such information regarding Holder, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of its Registrable Securities or to
determine that registration is not required pursuant to Rule 144 or other
applicable provision of the Act.
8. EXPENSES. All expenses other than underwriting discounts and
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commissions and fees and expenses of counsel to the selling Holders incurred in
connection with registrations, filings or qualifications pursuant hereto,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company, shall be borne by the Company.
9. INDEMNIFICATION. In the event any Registrable Securities are
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included in a Registration Statement or a Piggyback Registration Statement under
this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors and agents of each Holder,
any underwriter (as defined in the Act) for such Holder and each person, if any,
who controls such Holder or underwriter within the meaning of the 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 they may
become subject under the 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 or
omissions: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or (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, and the Company will reimburse each such Holder, officer
or director, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim,
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damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 9(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 statement which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Holder, officer, director, underwriter or controlling
person.
(b) To the extent permitted by law, each selling Holder, severally and
not jointly, will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its directors or officers or any person who controls such
Holder, against any losses, claims, damages, or liabilities (joint or several)
to which the Company or any such director, officer, controlling person, or
underwriter or controlling person, or other such Holder or director, officer or
controlling person may become subject, under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any statement or
omission in each case to the extent (and only to the extent) that such statement
or omission is made in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration
statement; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company and any such director, officer, controlling
person, underwriter or controlling person, other Holder, officer, director, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 9(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.
(c) Promptly after receipt by an indemnified party under this Section
9 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 9, 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 reasonably incurred fees and
expenses of one such counsel 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 conflicting
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
9, but the omission so to deliver written
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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 9.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree to
contribute to the aggregate claims, losses, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and the Holders in connection with the statements
or omissions which resulted in such Losses. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or by the Holders. The Company and the
Holders agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls a Holder of Registrable Securities within the meaning
of either the Securities Act or the Exchange Act and each director, officer,
partner, employee and agent of a Holder shall have the same rights to
contribution as such holder, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and each director of the Company,
and each officer of the Company who has signed the registration statement, shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and Holders under this Section 9
shall survive the redemption and conversion, if any, of the Preferred Stock, the
completion of any offering of Registrable Securities in a Registration Statement
under this Agreement, and otherwise.
10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
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:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the 1934
Act; and
11. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
--------------------------------
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
a majority of the Registrable Securities provided that the amendment treats
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all Holders equally. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder, each future Holder, and the
Company.
12. NOTICES. All notices required or permitted under this Agreement
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shall be made in writing signed by the party making the same, shall specify the
section under this Agreement pursuant to which it is given, and shall be
addressed if to (i) the Company at: Ancor Communications, Incorporated, Attn:
Xxxxx Xxxxxx, 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Telephone No. (612)
000-0000, Facsimile No. (000) 000-0000 and (ii) the Holders at their respective
last address and facsimile number of the party as shown on the records of the
Company. Any notice, except as otherwise provided in this Agreement, shall be
made by fax and shall be deemed given at the time of transmission of the fax.
13. TERMINATION. This Agreement shall terminate on the date all
-----------
Registrable Securities cease to exist; but without prejudice to (i) the parties'
rights and obligations arising from breaches of this Agreement occurring prior
to such termination (ii) other indemnification obligations under this Agreement.
14. ASSIGNMENT. The rights of a Holder may be transferred to a
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subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registrable Securities included in a Piggyback
Registration, a writing executed by such transferee agreeing to be bound as a
Holder by the terms of this Agreement), and the Company hereby agrees to file a
new registration statement or an amended registration statement including such
transferee or a selling security holder thereunder.
15. GOVERNING LAW. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York applicable to agreements
made in and wholly to be performed in that jurisdiction, except for matters
arising under the Act or the Securities Exchange Act of 1934, which matters
shall be construed and interpreted in accordance with such laws.
16. EXECUTION IN COUNTERPARTS PERMITTED. This Agreement may be
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executed in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one (1) instrument.
17. SPECIFIC PERFORMANCE. The Holder shall be entitled to the remedy
--------------------
of specific performance in the event of the Company's breach of this Agreement,
the parties agreeing that a remedy at law would be inadequate.
18. ENTIRE AGREEMENT. This Agreement, including the Exhibits
----------------
attached hereto, the Subscription Agreements, the Certificate of Designation,
the Placement Agent Agreement, the Placement Agent's Warrant, the Irrevocable
Instructions to Transfer Agent, the Preferred Stock certificates, 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.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of this
19th day of February, 1998.
ANCOR COMMUNICATIONS, INCORPORATED
By: ________________________________
Xxxxxxx X. Xxxxxxxxxxx, Chairman/CEO
Address: Ancor Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
DUNWOODY BROKERAGE SERVICES,
INC.
By: ________________________________
Xxxxxx X. Xxxxxxx, President
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INVESTOR(S)
___________________________________
Investor's Name
By:_________________________________
(Signature)
Address: ____________________________________
____________________________________
____________________________________
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