EXECUTION COPY
TEJAS INCORPORATED
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of July 1, 2005, by and among Tejas
Incorporated, a Delaware corporation (the "Company"), and the persons listed on
the signature pages hereof (each, a "Holder" and collectively, the "Holders"),
who are holders of the Company's Common Stock, par value $.001 per share
("Common Stock").
PREAMBLE
The Company desires to extend registration rights to the Holders.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the Company and the Holders agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Cause" shall mean (i) employee's dishonesty, fraud, theft,
embezzlement, or breach of fiduciary duty related to Company matters; (ii)
employee's material violation of the non-compete agreement with the Company;
(iii) employee's engagement in gross misconduct which is injurious to the
Company's finances, business, or reputation; or (iv) Xxxxx X. Xxxxxxxxxx, Xx.'s
conviction of, or plea of nolo contendere to, a felony or other crime involving
moral turpitude (other than minor traffic offenses).
(b) "Change of Control" shall mean (i) the sale, conveyance or other
disposition by the Company of all or substantially all of its property or
business or the Company's merger with or into or consolidation with any other
corporation (other than a wholly-owned subsidiary corporation), (ii) the
consummation of any other transaction or series of related transactions in which
more than 50% of the voting power of the Company is disposed of, (iii) the
execution by the Company of any binding agreement providing for any of the
foregoing transactions or (iv) the change in a majority of the Company's board
of directors (unless such successor directors' nomination for election to the
board of directors is recommended by a majority of the directors existing on the
date hereof).
(c) "Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
(d) "Common Stock" shall have the meaning set forth in the preamble.
(e) "Company" shall have the meaning set forth in the preamble.
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(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(g) "Good Reason" shall mean any action taken by the Company or any
subsidiary thereof (other than any such actions within the control of employee)
and not consented to by employee in writing, which has the following effect(s):
(i) any material breach of the terms of the employment agreement between
employee and the Company; (ii) any change in the formula or the means by which
employee's annual compensation is to be determined, or any failure to pay such
compensation to employee when due in accordance with the terms of such formula
and/or the employment agreement; (iii) any material diminution in employee's
duties and responsibilities, any change in employee's title as vice chairman of
the board of the Company, or any change in the reporting structure pursuant to
which employee reports directly to the board of directors of the Company; or
(iv) any failure by employee to be reelected as a director of the Company.
(h) "Holders" shall have the meaning set forth in the preamble.
(i) "Register," "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, and compliance with applicable
state securities laws.
(j) "Registrable Securities" shall mean all of the following to the extent
the same have not been sold to the public: (i) any and all shares of Common
Stock issued at any time during the term of this Agreement to the Holders
pursuant to the Agreement and Plan of Merger (the "Merger Agreement") dated as
of July 1, 2005 by and among the Company and the Holders, among other parties;
or (ii) stock issued in respect of the securities referred to in (i) as a result
of a stock split, stock dividend, reclassification, exchange, recapitalization
or combination. Notwithstanding the foregoing, Registrable Securities shall not
include otherwise Registrable Securities (A) that have been sold by a Holder in
a transaction in which his rights under this Agreement are not properly
assigned; or (B) (I) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, (II) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale or (III) the registration rights associated with such
securities have been terminated pursuant to Section 11 of this Agreement.
(k) "Rule 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144A.
(l) "Rule 144A" shall mean Rule 144A under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144.
(m) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations thereunder, all as the
same shall be in effect at the time.
(n) "Shelf Registration" means a registration effected pursuant to Section
2 hereof.
(o) "Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, and, at the option of the Company, such shares of capital stock (or
other securities of the Company) as the Company shall designate therein (the
"Company Shelf Securities") on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission,
amendment and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
As used herein, all capitalized terms not otherwise defined herein shall
have the meanings set forth in the Merger Agreement.
Section 2. Shelf Registration.
(a) The Company shall file within 60 days of the date of this Agreement a
Shelf Registration Statement relating to the offer and sale of the Registrable
Securities identified on Schedule A as registrable under the Shelf Registration
Statement by the Holders and of the Company Shelf Securities as registrable
under the Shelf Registration Statement by the Company, if any, from time to time
in accordance with the methods of distribution elected by such Holders, or the
Company, as the case may be, and set forth in such Shelf Registration Statement;
provided however, that in the event the financial statements relating to Capital
& Technology Advisors Inc. required to be filed on Form 8-K under the Merger
Agreement have not been so filed, such 60 day period shall be extended to the
date such financial statements are so filed. Thereafter, the Company shall use
commercially reasonable efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act as promptly as practicable;
provided, however, that no Holder shall be entitled to have the Registrable
Securities held by him covered by such Shelf Registration unless such Holder is
in compliance with the terms of this Agreement.
(b) The Company shall use commercially reasonable efforts (i) to keep the
Shelf Registration Statement effective in order to permit the prospectus forming
part thereof to be useable by (i) the Holders, other than Niskayuna Development
Corp. ("Niskayuna"), until two (2) years from its effective date, and (ii)
Niskayuna until four years from its effective date, as extended by any number of
days for which suspensions of the Shelf Registration Statement are required by
the Company pursuant to Sections 2(d)(i), 2(d)(ii) and 12(e) hereunder, or such
shorter period that will terminate when all the Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (provided, however, that the Company is expressly
permitted to file any post-effective amendment relating to the Shelf
Registration Statement and the failure of the Shelf Registration Statement to be
effective due to such filing shall not be deemed a violation of this Agreement),
and (ii) after the
effectiveness of the Shelf Registration Statement, promptly upon the request of
any Holder to take any action reasonably necessary to register the sale of any
Registrable Securities of such Holder and to identify such Holder as a selling
securityholder.
(c) In connection with any Shelf Registration Statement, the Company
shall:
(i) prepare and file with the Commission a Shelf Registration
Statement, on an appropriate form pursuant to Rule 415 of the Securities Act and
which the Company is eligible to use, with respect to such shares and use its
commercially reasonable best efforts to cause such Shelf Registration Statement
to become and remain effective as provided herein;
(ii) promptly prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Shelf Registration
Statement effective and current and to comply with the provisions of the
Securities Act with respect to the disposition of all shares covered by such
Shelf Registration Statement, including such amendments and supplements as may
be necessary to reflect the intended method of disposition from time to time of
the prospective seller of such Registrable Securities; and
(iii) use its commercially reasonable best efforts to register or
qualify the Registrable Securities covered by such Shelf Registration Statement
under such other securities or blue sky or other applicable laws of such
jurisdiction within the United States as each prospective seller shall
reasonably request, to enable such seller to consummate the public sale or other
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not at the time so
qualified or to take any action that would subject it to service of process in
suits other than those arising out of the offer or sale of the Registrable
Securities covered by such registration statement in any jurisdiction where it
is not at the time so subject.
(d) Anything in this Agreement to the contrary notwithstanding:
(i) the Holders shall not offer any Registrable Securities pursuant
to the Shelf Registration Statement if such offering would require the Company
(i) to furnish any financial statements other than as of the end of a fiscal
quarter or (ii) to furnish any audited financial statements other than as of the
end of a fiscal year. In addition to the foregoing, in the event of a proposed
offering by a Holder pursuant to the Shelf Registration Statement, at such time
as any registration statement would be required to include audited financial
statements as of a fiscal year-end, the Company may delay the dissemination of
the required notice and the taking of any action to effect a supplement or
post-effective amendment to the Shelf Registration Statement until such time as
such audited financial statements are available in the ordinary course of
business, but in no event more than five (5) Business Days after the date on
which the Company annual report on Form 10-K is due (including any applicable
extensions permitted by the Commission based on a Form 12b-25 filed by the
Company).
(ii) no Holder shall offer any Registrable Securities pursuant to
the Shelf Registration Statement within 30 days after the effectiveness of any
other registration of the Company's capital stock (other than a registration
statement (A) on Form S-8 or any successor form to such Form or in connection
with any employee or director welfare, benefit or compensation plan, (B) on Form
S-4 or any successor form to such Form or in connection with an exchange offer
or merger transaction, (C) in connection with a rights offering exclusively to
existing holders of shares of Common Stock, (D) connection solely with an
offering to employees of the Company or its subsidiaries or (E) relating to a
transaction pursuant to Rule 145 of the Securities Act).
Section 3. PIGGYBACK REGISTRATION. If at any time after the Closing Date,
the Company or any of its directors or officers or any of such directors' or
officers' respective Affiliates (as defined in Rule 405 of the Securities Act)
proposes to register any shares of the Company Common Stock (the "Other
Securities") under the Securities Act for sale by the Company and/or by other
selling stockholders in an underwritten public offering, the Company will give
prompt written notice to each Holder of its intention to do so at least twenty
(20) Business Days after the filing date of the registration statement relating
to such registration (the "Piggyback Notice"). The Piggyback Notice shall offer
each such Holder the opportunity to include in such registration statement such
number of Registrable Securities as each such Holder may request. Upon the
written request of any such Holder, made within ten (10) Business Days after the
receipt of the Piggyback Notice (which request shall specify the number of
Registrable Securities intended to be disposed of) (the "Piggyback Response"),
then the Company shall effect, in connection with the registration of the Other
Securities, a registration statement under the Securities Act registering all
Registrable Securities which the Company has been so requested to register (the
"Piggyback Registration Statement"); provided, however,
(a) if at any time after giving written notice of its intention to
register Other Securities and prior to the effective date of such registration,
the Company shall determine for any reason not to register or to delay
registration of such Other Securities, the Company may, at its election, give
written notice of such determination to the Holders who requested inclusion in
such registration and, thereupon, (i) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration and (ii) in the case
of a determination to delay such registration, the Company shall be permitted to
delay registration of any Registrable Securities requested to be included in
such registration for the same period as the delay in registering such Other
Securities;
(b) if the lead underwriter in the registration advises the Company in
writing (with a copy to the Holders who requested registration) that, in such
firm's opinion, such offering would be materially and adversely affected by the
inclusion therein of the Registrable Securities requested to be included
therein, the Company shall include in such registration: (1) first, all
securities (if any) that the Company proposes to sell for its own account (the
"the Company Securities") and (2) second, the amount of securities (including
Registrable Securities) that such lead underwriter advises, allocated pro rata
among the holders of securities (other than Registrable Securities) of the
Company (the "Other Holders") and the Holders on the basis of the number of
securities
(including Registrable Securities) requested to be included therein by each
Other Holder and each Holder;
(c) the Company shall not be required to effect any registration of
Registrable Securities under this Section 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, reincorporation,
dividend reinvestment plans or stock option or other executive or employee
benefit or compensation plans; and
(d) no sales shall be made under the Shelf Registration Statement from and
after the time the Company provides the Piggyback Notice until the earlier to
occur of (i) the abandonment of such registration, or (ii) ninety (90) days
after the date such Registration Statement is declared effective by the SEC.
Section 4. Expenses of Registration. In addition to the fees and expenses
contemplated by this Section 4 hereof, all expenses incurred in connection with
one registration pursuant to Section 2 hereof and in connection with any
registration pursuant to Section 3 hereof, including without limitation all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company and expenses of any special audits of
the Company's financial statements incidental to or required by such
registration, shall be borne by the Company, except that the Company shall not
be required to pay underwriters' fees, discounts or commissions relating to
Registrable Securities sold for the account of any Holder or fees of legal
counsel for the Holders except in the case of a registration pursuant to Section
3 hereof, in which case the Holders shall be reimbursed for the fees and
expenses of one counsel for the Holders.
Section 5. Registration Procedures. In the case of the Shelf Registration
Statement or the Piggyback Registration Statement (each a "Registration
Statement") effected by the Company pursuant to this Agreement, the Company will
keep each Holder participating therein advised in writing as to the initiation
of such Registration Statement and as to the completion thereof. At its expense
the Company will:
(a) promptly prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act;
(b) furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(c) use commercially reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such Registration Statement, or the
lifting of any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment;
(d) subject to Section 2(c)(iii), register or qualify such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as any Holder or underwriter reasonably requires;
(e) cause all Registrable Securities covered by such Registration
Statement to be listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed;
(f) immediately notify each Holder, at any time a prospectus covered by
such Registration Statement is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge as a result of
which the prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; and
(g) take such other actions as shall be reasonably requested by any
Holder.
Section 6. Indemnification.
(a) In the event of a registration, qualification or compliance of any of
the Registrable Securities under the Securities Act pursuant to Section 2, the
Company will indemnify and hold harmless each Holder of such Registrable
Securities thereunder, each of its officers, directors and partners and each
other person, if any, who controls such Holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Holder or controlling person may become subject under the
Securities Act, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, any offering circular or other
offering document or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated under the Securities Act or any
state securities law or rule or regulation promulgated under the Securities Act
or any state securities law applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Holder, each of its
officers, directors and partners and each person controlling such Holder, 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, that, notwithstanding the foregoing, 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 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, indemnify and hold harmless 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 and each underwriter within the meaning of the Securities
Act, and each other Holder, each of such other Holder's officers, directors and
partners and each
person controlling such other 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, prospectus, offering circular or
other offering 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 offering document in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder specifically for use therein; provided,
however, the total amount for which any Holder, its officers, directors and
partners, and any person controlling such Holder, shall be liable under this
Section 6(b) shall be limited to the proportion of any such loss, claim, damage,
liability or expense which is equal to the proportion that the public offering
price of shares sold by such Holder under such registration statement bears to
the total public offering price of all securities sold thereunder but not to
exceed, in any event, the aggregate net proceeds received by such Holder from
the sale of Registrable Securities sold by such Holder in such registration,
qualification or compliance.
(c) Each party entitled to indemnification under this Section 6 (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 claims 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 Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment to
the Indemnifying Party. The Indemnifying Party shall not be liable to indemnify
any Indemnified Party for any settlement of any such action effected without the
Indemnifying Party's consent. 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 of such
claim or litigation.
(d) Notwithstanding the foregoing, to the extent that the provisions on
indemnification contained in the underwriting agreements entered into among the
selling Holders, the Company and the underwriters in connection with the
underwritten public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall be controlling as to the
Registrable Securities included in the public offering.
(e) If the indemnification provided for in this Section 6 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 thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
hand 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 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, the amount any Holder shall be obligated to
contribute pursuant to this Section 6(e) shall be limited to an amount equal to
the net proceeds to such Holder of the Registrable Securities sold pursuant to
the registration statement which gives rise to such obligation to contribute.
(f) The indemnification provided by this Section 6 shall be a continuing
right to indemnification and shall survive the registration and sale of any
securities by any definition entitled to indemnification hereunder and the
expiration or termination of this Agreement.
Section 7. Lockup Agreement. In consideration for the Company agreeing to
its obligations under this Agreement, each Holder agrees in connection with any
underwritten registration of the Company's securities upon the request of the
Company and the underwriters managing the underwritten offering of the Company's
securities, not to publicly sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any Registrable Securities (other
than those included in the registration) for a period of up to 180 days (as
requested by the underwriters) from the effective date of such registration.
Each Holder's agreement under the preceding sentence, however, shall be subject
to the condition that all directors and officers of the Company and all holders
of more than ten percent (10%) of the then outstanding capital stock of the
Company shall have agreed to the same restrictions.
Section 8. Information by Holder. The 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
reasonably required in connection with any registration' referred to herein.
Section 9. Sales. (a) With a view to making available to Holders of
Registrable Securities the benefits of certain rules and regulations of the
Commission which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to at all times prior to the
termination of this Agreement:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 and Rule 144A;
(ii) use its commercially reasonable best efforts to 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; and
(iii) furnish to each Holder so long as such Holder owns any
Registrable Securities forthwith, upon written request, a written statement by
the Company that it has complied with the reporting requirements of Rule 144,
the Securities Act and the Exchange Act (to the extent that it is then subject
to any such reporting requirements), a copy of the most recent annual and
quarterly report of the Company, and such other reports and documents filed by
the Company under the Exchange Act as may be reasonably requested by such Holder
in connection with availing the Holder of any rule or regulation of the
Commission permitting the selling of such securities without registration.
(b) Resale Restriction: Niskayuna hereby agrees that it shall not sell,
assign, transfer, encumber, pledge, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise dispose of 1,695,000 shares of
Common Stock issued to it at the Effective Time, which includes the shares of
Common Stock that have been deposited into escrow by Niskayuna under the Escrow
Agreement ("Restricted Share Consideration"), as adjusted to reflect any stock
splits or other similar corporate events, whether pursuant to Section 2 hereof,
Rule 144 or any other exemption from the registration requirements of the
Securities Act (the "Resale Restriction"), except (i) to Permitted Transferees
(as hereinafter defined) who shall agree to be bound by the provisions of this
Agreement, including this Section 9(b), (ii) to satisfy its obligations pursuant
to the provisions of Article VIII of the Merger Agreement, (iii) in the event
Xxxxx X. Xxxxxxxxxx, Xx. is no longer employed by the Company (other than a
termination by him without Good Reason or a termination for Cause pursuant to
his Employment Agreement with the Company ), (iv) from and upon a Change of
Control and (v) except that portions of its Restricted Share Consideration shall
be released from this Resale Restriction over time as provided in this Section
9(b) and it shall be entitled to sell a maximum of:
(i) Fifteen percent (15%) of its Restricted Share Consideration after the
first anniversary of the Closing Date;
(ii) an additional twenty five percent (25%) of its Restricted Share
Consideration after the second anniversary of the Closing Date; and
(iii) the remaining sixty percent (60%) of its Restricted Share
Consideration after the third anniversary of the Closing Date.
Section 10. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities of a Holder and keep information
available granted to a Holder by the Company under Section 2, may not be
assigned or transferred by a Holder except as follows: (a) if the assignee or
transferee receives at least ten percent (10%) of the Registrable Securities
then held by such Holder and agrees in writing to be bound by the terms of this
Agreement as a Holder, (b) if such transferee or assignee is a partner or a
retired partner of any Holder which is a partnership, a member of former member
of any Holder which is a limited liability company or a
stockholder or former stockholder of any Holder which is a corporation, or (c)
if such transferee or assignee is a family member of any Holder or of any such
partner, stockholder or member, a trust for the primary benefit of any such
Holder, partner, stockholder or member, or is the estate of any such Holder,
partner, member or stockholder (any of the transferees described in this
subsection (c) or (b) above, all of whom must agree to be bound by the terms of
this Agreement as a Holder, a "Permitted Transferee").
Section 11. Termination of Rights. This Agreement shall terminate at 5:00
p.m. Eastern time on (i) the second anniversary of effectiveness of the
Registration Statement with respect to the Holders, other than Niskayuna and
(ii) the fourth anniversary of effectiveness of the Registration Statement with
respect to Niskayuna, as extended by the number of days specified in Section
2(b) hereof to account for Company-required suspensions.
Section 12. Miscellaneous.
(a) Rights to Third Parties. The Company covenants and agrees that if it
shall grant, or cause or permit to be created, for the benefit of any person or
entity any registration rights relating to shares of the Company's Common Stock
which are more favorable than those granted hereunder or any other securities of
the Company, it shall give written notice to each Holder that more favorable
provisions are being offered to such Holder. Upon the written request of any
such Holder, made within ten (10) business days of receipt of the Company's
notice, this Agreement may be amended to include such provisions.
(b) Amendments. This Agreement constitutes the entire agreement of the
parties within respect to the subject matter hereof and may be amended or
modified only by a writing signed by the Company and the Holders holding a
majority of the Registrable Securities. The Holders hereby consent to future
amendments to this Agreement that permit future investors to be made parties
hereto and to become Holders of Registrable Securities, subject to the
limitations set forth in Section 12(a) above.
(c) Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute a single instrument.
(d) Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and may be sent initially by facsimile
transmission and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger, addressed (i) if to a
Holder, at such Holder's address set forth on the books of the Company, or at
such other address as such Holder shall have furnished to the Company in
writing, or (ii) if to any other holder of any Registrable Securities, at such
address as such holder shall have furnished the Company in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last holder of such securities who has so furnished an address to
the Company, or (iii) if to the Company, one copy should be sent to the
Company's current address at 0000 Xxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx, or at such other address as the Company shall have
furnished to the Holders. All such notices shall be effective and deemed duly
given when received or when attempted delivery is refused.
(e) Non-Public Information. Any other provisions of this agreement to the
contrary notwithstanding, the Company's obligation to file a Shelf Registration
Statement, or cause such Shelf Registration Statement to become and remain
effective, shall be suspended for a period not to exceed 45 trading days (and
for periods not exceeding, in the aggregate, 90 trading days in any 24-month
period) if there exists at the time material non-public information relating to
the Company which, in the good faith business judgment of the Company, after
consultation with counsel, should not be disclosed and a certificate to such
effect is signed by the chief executive officer or president of the Company and
delivered to the Holders.
(f) Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) Governing Law. This Agreement shall be governed by and construed under
the laws of the State of New York without regard to principles of conflict of
law.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
TEJAS INCORPORATED:
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
STOCKHOLDERS:
NISKAYUNA DEVELOPMENT LLC
By: /s/ Xxxxx X.Xxxxxxxxxx, Xx.
-----------------------------
Name: Xxxxx X.Xxxxxxxxxx, Xx.
Title: Authorized Signatory
XXXXX XXXX, XX.
/s/ Xxxxx Xxxx, Xx.
-----------------------------
XXXXX X'XXXXXXX
/s/ Xxxxx X'Xxxxxxx
-----------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-----------------------------
XXXX X. XXXX
/s/ Xxxx X. Xxxx
-----------------------------
