1
EXHIBIT 10.44
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of , 2001 (the
"Agreement") by and among (i) Exabyte Corporation, a Delaware corporation (the
"Company"), and (ii) the holders of the Company's Series H Preferred Stock (the
"Preferred Stock") identified on the signature pages hereto (the
"Stockholders").
The Stockholders and the Company are parties to that certain Agreement and
Plan of Merger, dated as of August , 2001 (the "Merger Agreement"), providing
for, among other things, the purchase and sale of the Preferred Stock, and the
Stockholders' obligations under the Merger Agreement are conditioned upon the
execution and delivery of this Agreement by the Company. In consideration of the
mutual promises and covenants set forth herein, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "Affiliate" of a Person means any other Person that controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, the term "control" means the power to direct the management and
policies of the subject Person, whether by virtue of ownership of voting
securities, by contract or otherwise.
1.2 "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.3 "Common Stock" shall mean the Company's Common Stock, $.001 par value
per share.
1.4 "Exchange Act" shall mean the Securities Exchange Act of 1934 (or any
similar successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
1.5 "Initiating Holders" shall mean, in the case of a Long-Form
Registration, the holders of not less than a majority of the outstanding
Registrable Securities and, in the case of a Short-Form Registration, the
holders of not less than 25% of the outstanding Registrable Securities.
1.6 "Person" shall mean any individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
1.7 "Registrable Securities" shall mean the shares of Common Stock held
from time to time by the Stockholders and their transferees; provided, however,
that (x) Registrable Securities shall include shares of Common Stock issuable
upon conversion of the Preferred Stock or upon exercise of any options, warrants
or similar rights to the extent that the Company has received appropriate
assurances that such conversion or exercise will be effected concurrently with
the effectiveness of the registration statement covering such Common Stock and
(y) Registrable Securities shall not include any shares of Common Stock that
have previously been sold pursuant to an effective registration statement under
the Securities Act or that have otherwise been sold to the public in an
open-market transaction under Rule 144.
1.8 The terms "registers," "registered" and "registration" shall refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
1.9 "Registration Expenses" shall mean all reasonable expenses incurred in
effecting any registration pursuant to this Agreement, including without
limitation all registration, qualification and filing fees,
1
2
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, expenses of any regular or special audits
incident to or required by any such registration, and the fees and expenses of
one counsel for the selling holders of Registrable Securities, but excluding
Selling Expenses.
1.10 "Rule 144" shall mean Rule 144 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
1.11 "Securities Act" shall mean the Securities Act of 1933 (or any
similar successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
1.12 "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registrations.
(a) Request for Registration. At any time or times after the 90-day
anniversary of the date of this Agreement, the Initiating Holders may require
that the Company effect a registration under the Securities Act (i) in the case
of a requested registration on Form S-1 or any similar form (a "Long Form
Registration"), with respect to at least thirty-three percent (33%) of the
Registrable Securities then outstanding, or (ii) in the case of a requested
registration on Form S-3 or any similar form, if available (a "Short-Form
Registration"), with respect to at least ten percent (10%) of the Registrable
Securities then outstanding with an anticipated offering price of $2,500,000 or
more (each a "Demand Registration"), provided, however, that no such Demand
Registration shall become effective prior to the 180-day anniversary of the date
of this Agreement unless otherwise agreed by the Company. Upon receipt of
written notice of such demand, the Company will promptly give written notice of
the proposed registration to all other holders of Registrable Securities and
will include in such registration all Registrable Securities specified in such
demand, together with all Registrable Securities of any other holder of
Registrable Securities joining in such demand as are specified in a written
request received by the Company within twenty (20) days after delivery of the
Company's notice. The Company shall file a registration statement with respect
to each Demand Registration requested pursuant to Section 2.1(a) as soon as
practicable after receipt of the demand of the Initiating Holders.
(b) Limitations on Demand. The Company shall not be required to effect a
registration pursuant to Section 2.1:
(i) On the date on which the holders of Registrable Securities hold
less than 5% of the outstanding shares of the Company's Common Stock
(assuming the conversion of all such holders' shares of Preferred Stock);
(ii) during the period starting with the date of filing, and ending on
the date ninety (90) days following the effective date of the registration
statement pertaining to a public offering;
(iii) if in the good faith judgment of the Board of Directors of the
Company, such registration would be seriously detrimental to the Company in
that such registration would interfere with a proposed primary registration
of securities by the Company or any other material corporate transaction
and the Board of Directors concludes, as a result, that it is advisable to
defer the filing of such registration statement at such time (as evidenced
by an appropriate resolution of the Board), then the Company shall have the
right to defer such filing for the period during which such registration
would be seriously detrimental; provided, however, that (x) the Company may
not defer the filing for a period of more than 180 days after receipt of
the demand of the Initiating Holders, (ii) the Company
2
3
shall not exercise its right to defer a Demand Registration more than once
in any twelve month period, and (iii) if the Company undertakes a primary
registration following an exercise of its deferral right, the holders of
Registrable Securities shall have "piggyback" rights under Section 2.2
hereof with respect to not less than one-third of the number of shares of
Common Stock to be sold in such offering; or
(iv) if within thirty (30) days of receipt of a written request from
Initiating Holders pursuant to Section 2.1(a), the Company gives notice to
the Holders of the Company's intention to make a public offering within
ninety (90) days.
(c) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by a Demand Registration by means of an
underwriting, they shall so advise the Company as a part of their demand made
pursuant to Section 2.1(a) and the Company shall include such information in its
written notice to holders of Registrable Securities. The Initiating Holders
shall have the right to select the managing underwriter(s) for an underwritten
Demand Registration, subject to the approval of the Company's Board of Directors
(which will not be unreasonably withheld or delayed). The right of any holder of
Registrable Securities to participate in an underwritten Demand Registration
shall be conditioned upon such holder's participation in such underwriting in
accordance with the terms and conditions thereof, and the Company and such
holders will enter into an underwriting agreement in customary form.
(d) Priorities. The holders of Registrable Securities will have absolute
priority over any other securities included in a Demand Registration. If other
securities are included in any Demand Registration that is an underwritten
offering, and the managing underwriter for such offering advises the Company
that in its opinion the amount of securities to be included exceeds the amount
of securities which can be sold in such offering without adversely affecting the
marketability or pricing thereof, the Company will include in such registration
all Registrable Securities requested to be included therein prior to the
inclusion of any other securities offered by another holder of the Company's
securities holding registration rights. If the amount of Registrable Securities
requested to be included in such registration exceeds the amount of securities
which in the opinion of such underwriter can be sold without adversely affecting
the marketability or pricing of such offering, such Registrable Securities shall
be included pro rata among the holders thereof based on the percentage of the
outstanding Registrable Securities held by each such Stockholder, assuming the
conversion of the Preferred Stock.
(e) Postponement. The Company shall have the right to postpone (or, if
necessary or advisable, withdraw) the filing, or delay the effectiveness, of a
registration statement, or fail to keep such registration statement continuously
effective or not amend or supplement the registration statement or included
prospectus, if the Company determines based upon the advice of counsel that it
would be advisable to not disclose in the registration statement a planned or
proposed financing, acquisition or other corporate transaction or other material
information, and the Company shall have determined in good faith that such
disclosure is not in the best interests of the Company and its stockholders (as
evidenced by an appropriate resolution of the Board); provided that no one such
postponement shall exceed 30 days in any six-month period and all such
postponements shall not exceed 90 days in the aggregate. The Company shall
advise each holder of securities covered by such registration statement of any
such determination as promptly as practicable after such determination.
2.2 Piggyback Registrations
(a) Request for Inclusion. If the Company shall determine to register any
of its securities for its own account or for the account of other security
holders of the Company on any registration form (other than Form S-4 or S-8, or
any successor forms thereto) which permits the inclusion of Registrable
Securities (a "Piggyback Registration"), the Company will promptly give each
holder of Registrable Securities written notice thereof and, subject to Section
2.2(c), shall include in such registration all the Registrable Securities
requested to be included therein pursuant to the written requests of holders of
Registrable Securities received within twenty (20) days after delivery of the
Company's notice.
3
4
(b) Underwriting. If the Piggyback Registration relates to an underwritten
public offering, the Company shall so advise the holders of Registrable
Securities as a part of the written notice given pursuant to Section 2.2(a). In
such event, the right of any holder of Registrable Securities to participate in
such registration shall be conditioned upon such holder's participation in such
underwriting in accordance with the terms and conditions thereof. All holders of
Registrable Securities proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected by the Company.
(c) Priorities. If such proposed Piggyback Registration is an underwritten
offering and the managing underwriter for such offering advises the Company that
the securities requested to be included therein exceeds the amount of securities
that can be sold in such offering without adversely affecting the marketability
or pricing thereof, then (except as provided in Section 2.1(b)) any securities
to be sold by the Company in such offering and by any security holder for whose
account securities are being registered under a demand registration right shall
have priority over any Registrable Securities, and the Registrable Securities to
be sold in such offering shall be reduced pro rata (on the basis of Registrable
Securities requested to be included in the registration statement) with other
securities requested to be included in such registration by security holders
with similar registration rights. In the event that less than all the
Registrable Securities proposed to be sold are included in such registration as
a result of the priorities set forth in this Section 2.2(c), the number of
shares to be included by a holder of Registrable Securities in such registration
shall be reduced pro rata on the basis of the percentage of the outstanding
Registrable Securities held by such Stockholder (assuming the conversion of the
Preferred Stock) and all other holders exercising similar registration rights.
The Company shall not grant any registration rights that entitle the holders of
other securities to any priority over the Registrable Securities in any
Piggybank Registration without the prior consent of the holders of a majority of
the then-outstanding Registrable Securities.
(d) Right to Terminate Registration. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 2.2
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 2.3 hereof.
2.3 Expenses of Registration.
All Registration Expenses incurred in connection with up to two Long-Form
Registrations and all Short-Form and Piggyback Registrations shall be borne by
the Company; provided, however, that (x) no registration shall count as one of
the Company-paid Long-Form Registrations unless the Company causes the
registration statement to become effective and remain effective for the shorter
of 180 days or the completion of the plan distribution, and (y) the holders of
Registrable Securities shall be entitled to additional Long-Form Registrations
so long as such holders agree to bear all Registration Expenses associated
therewith. All Selling Expenses relating to Registrable Securities included in
any Demand or Piggyback Registration shall be borne by the holders of such
securities pro rata on the basis of the number of shares sold by them.
2.4 Registration Procedures. In the case of each registration effected by
the Company pursuant to this Article II, the Company will keep each holder of
Registrable Securities advised in writing as to the initiation of such
registration and as to the completion thereof. At its expense, the Company will:
(a) cause such registration to be declared effective by the Commission
and, in the case of a Demand Registration, keep such registration effective
for a period of one hundred eighty (180) days or until the holders of
Registrable Securities included therein have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement
4
5
(including post-effective amendments) 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) obtain appropriate qualifications of the securities covered by
such registration under state securities or "blue sky" laws in such
jurisdictions as may be requested by the holders of Registrable Securities;
provided, however, that the Company shall not be required to file a general
consent to service of process in any jurisdiction in which it is not
otherwise subject to service in order to obtain any such qualification;
(d) furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a
holder of Registrable Securities from time to time may reasonably request;
(e) 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 or incomplete in
the light of the circumstances then existing, and at the request of any
such holder, prepare and furnish to such holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
shares, 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 not misleading or incomplete in
the light of the circumstances then existing;
(f) cause all Registrable Securities covered by such registration to
be listed on each securities exchange or inter-dealer quotation system on
which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable
Securities covered by such registration and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of
such registration;
(h) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months, but not more than 18 months, beginning with the first
month after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(i) in connection with any underwritten Demand Registration, the
Company will enter into an underwriting agreement reasonably satisfactory
to the Initiating Holders containing customary underwriting provisions,
including indemnification and contribution provisions.
2.5 Indemnification.
(a) The Company will indemnify each holder of Registrable Securities, each
of such holder's officers, directors, partners, agents, employees and
representatives, and each person controlling such holder within the meaning of
Section 15 of the Securities Act, with respect to each registration,
qualification or compliance effected pursuant to this Article II, against all
expenses, claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, prospectus or offering circular, in each case as amended, incident to
any registration of the Registrable Securities hereunder, or in any application
or other document executed by or on behalf of the Company filed in any
jurisdiction in order to register or qualify any of the Registrable Securities
under the securities or blue sky laws thereof or filed with the Commission or
any securities exchange; 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, or any violation by the Company of the
Securities Act or any rule or regulation
5
6
thereunder applicable to the Company, and will reimburse each such indemnified
person for any legal and any other expenses reasonably incurred in connection
with investigating and defending or settling any such claim, loss, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by such holder of Registrable
Securities specifically for use therein. It is agreed that the indemnity
agreement contained in this Section 2.5(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 prior written consent of the Company (which
consent has not been unreasonably withheld).
(b) Each holder of Registrable Securities included in any registration
effected pursuant to this Article II shall indemnify the Company, each of its
directors, officers, agents, employees and representatives, and each person who
controls the Company within the meaning of Section 15 of the Securities Act,
each other participating holder of Registrable Securities and each of their
officers, directors and partners, and each person controlling such holders,
against all claims, losses, 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,
prospectus, 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 such
indemnified persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending 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 strict conformity with written
information furnished to the Company by such holder of Registrable Securities;
provided, however, that (x) no holder of Registrable Securities shall be liable
hereunder for any amounts in excess of the net proceeds received by such holder
pursuant to such registration, and (y) the obligations of such holder of
Registrable Securities hereunder shall not apply to amounts paid in settlement
of any such claims, losses, damages or liabilities (or actions in respect
thereof) if such settlement is effected without the prior written consent of
such holder (which consent has not been unreasonably withheld).
(c) Each party entitled to indemnification under this Section 2.5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") 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 through counsel approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense; provided, however, that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 2.5 to the
extent such failure is not prejudicial. 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 an unconditional release of such Indemnified Party from all
liability in respect to such claim or litigation and no Indemnified Party shall,
except with the consent of each Indemnifying Party, consent to entry of any
judgment or enter into any settlement which does not include an unconditional
release of such Indemnifying Party from all liability in respect to such claim
or litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 2.5 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
6
7
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which 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. Notwithstanding the foregoing, no holder of Registrable
Securities shall be required to contribute amounts in excess of the amounts that
such holder would have been required to pay pursuant to the indemnification
provisions of this Section 2.5 (assuming such provisions were enforceable).
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in an underwriting agreement entered
into in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
2.6 Other Obligations.
With a view to making available the benefits of certain rules and
regulations of the Commission that may effectuate the registration of
Registrable Securities or permit the sale of Registrable Securities to the
public without registration, the Company agrees to:
(a) exercise reasonable best efforts to cause the Company to be
eligible to utilize Form S-3 (or any similar form) for the registration of
Registrable Securities;
(b) at such time as any Registrable Securities are eligible for
transfer under Rule 144(k), upon the request of the holder of such
Registrable Securities, together with such representations or other items
as reasonably requested by the Company, remove any restrictive legend from
the certificates evidencing such securities at no cost to such holder;
(c) make and keep available public information as defined in Rule 144
under the Securities Act at all times;
(d) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act;
(e) furnish any holder of Registrable Securities upon request a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144, and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents as a holder of Registrable Securities may
reasonably request in availing itself of any rule or regulation of the
Commission (including Rule 144A) allowing a holder of Registrable
Securities to sell any such securities without registration.
2.7 Hold-Back Agreements. If requested by any underwriter of Common Stock
of the Company, a holder of Registrable Securities shall not sell or otherwise
transfer or dispose of any Common Stock (other than pursuant to such
registration) during a period of time not to exceed ninety (90) days following
the effective date of such registration statement; provided, however, that if
other holders of Common Stock are subjected to hold-back restrictions of shorter
duration, such shorter periods shall apply to holders of Registrable Securities.
The obligations described in this Section 2.7 shall not apply to a registration
on Form S-4 or Form S-8 or similar forms which may be promulgated in the future
and shall not apply to a holder of Registrable Securities representing less than
one percent (1.0%) of the then-outstanding Common Stock.
2.8 Termination of Registration Rights. The right of any holder of
Registrable Securities to request inclusion of Registrable Securities in any
registration pursuant to this Article II shall terminate at such time as when
(i) all Registrable Securities beneficially owned by such holder of Registrable
Securities may immediately be sold under Rule 144(k) and (ii) the Company's
Common Stock is either listed on a
7
8
national securities exchange or traded in the Nasdaq National Market System;
provided, however, that the provisions of Section 2.8 shall not apply to any
holder of Registrable Securities representing more than five percent (5%) of the
then-outstanding Common Stock.
ARTICLE III
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees, so long as any Preferred Stock is
outstanding, as follows:
3.1 Information Rights.
The Company will furnish to each holder of Preferred Stock, concurrently
with the filing thereof with the SEC, copies of all reports on Forms 10-K, 10-Q
and 8-K and all definitive proxy materials and prospectuses.
ARTICLE IV
MISCELLANEOUS
4.1 Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware. Without limiting the foregoing, the
General Corporation Law of the State of Delaware shall govern as to matters of
corporate law.
4.2 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.
4.3 Entire Agreement: Amendment and Waiver. This Agreement constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated except by a written instrument signed
by the Company and the holders of at least two-thirds of the outstanding
Registrable Securities, and any such amendment, waiver, discharge or termination
shall be binding on all the Stockholders.
4.4 Notices, etc. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, or if not, then on the next
business day; or (iii) one (1) business day after deposit with a nationally
recognized overnight courier for next day delivery, with verification of
receipt. All communications shall be sent to the Company at 0000 00xx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, and to any Stockholder at the address of such
Stockholder set forth in the Company's records or at such other address as the
Company or such Stockholder may designate by ten (10) days advance written
notice to the other parties hereto.
4.5 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any Stockholder under this Agreement shall impair
any such right, power or remedy of such Stockholder 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 Stockholder of any breach or default
under this Agreement or any waiver on the part of any Stockholder 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
Stockholder, shall be cumulative and not alternative.
4.6 Severability. Unless otherwise expressly provided herein, a
Stockholder's rights hereunder are several rights, not rights jointly held with
any of the other Stockholders. In case any provision of the
8
9
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4.7 Counterparts; Fax Signatures. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. This Agreement may be executed by
facsimile signature, provided an original thereof is promptly made available.
4.8 Specific Enforcement. Any holder of Registrable Securities shall be
entitled to specific enforcement of its rights under this Agreement. The parties
acknowledge that money damages would be an inadequate remedy for a breach of
this Agreement and consent to an action for specific performance or other
injunctive relief in the event of any such breach.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
COMPANY:
EXABYTE CORPORATION
By:
----------------------------------
Name:
Title:
STOCKHOLDERS:
CENTENNIAL VENTURES
By:
----------------------------------
Name:
Title:
MERITAGE PRIVATE EQUITY FUND, L.P.
By:
----------------------------------
Name:
Title:
9
