CONCURRENT COMPUTER CORPORATION
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of October
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28, 1999, by and between Concurrent Computer Corporation, a Delaware corporation
(the "Company"), and, Xxxx Xxxxxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxx as Holders
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(as defined herein) of the Company's common stock, par value $.01 (the "Common
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Stock").
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RECITALS:
WHEREAS, the Company has issued to Holders the shares of Common Stock of
the Company identified in Schedule 1 (the "Securities"); and
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by all
parties hereto, the parties, intending to be legally obligated, hereby agree as
follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings set forth in this Section 1:
"Act" will mean the Securities Act of 1933, as amended, and the Regulations
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promulgated thereunder.
"Broker-Dealer" will mean any broker or dealer registered as such under the
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Exchange Act.
"Closing Date" will mean the date of this Agreement.
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"Commission" or "SEC" will mean the United States Securities and Exchange
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Commission.
"DTC" will mean the Depository Trust Company.
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"Effectiveness Target Date" will be as defined in Section 3 hereof.
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"Exchange Act" will mean the Securities Exchange Act of 1934, as amended, and
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the Regulations promulgated thereunder.
"Holders" will be as defined in Section 2(b) hereof.
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"Indemnified Holder" will be as defined in Section 6(a) hereof
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"NASD" will mean National Association of Securities Dealers, Inc.
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"Person" will mean an individual, partnership, corporation, trust or
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unincorporated organization, or a government or an agency, authority or
political subdivision thereof.
"Prospectus" will mean the prospectus included in a Resale Registration
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Statement, as amended or supplemented, including post-effective amendments
thereto.
"Resale Registration Statement" will be as defined in Section 3 hereof.
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"Security" will mean each share of Common Stock issued to Holders as set
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forth in Schedule 1 hereto.
"Transfer Restricted Securities" will mean, as to each Holder, each
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Security, until the earliest to occur of (a) the date on which such Security has
been effectively registered under the Act and disposed of in accordance with a
Resale Registration Statement or other applicable registration statement and (b)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Act or may be sold to the public without compliance with such
rule; provided that no more than 25% of the Securities of Xxxx Xxxxxxxxxx may be
resold as Transfer Restricted Securities under the Resale Registration
Statement.
"Underwritten Registration" or "Underwritten Offering" will mean an
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offering in which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective registration statement filed
with the Commission.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(A) TRANSFER RESTRICTED SECURITIES.The Transfer Restricted Securities
are subject to the terms of this Agreement and may be sold in accordance with
the provisions hereof.
(B) HOLDERS OF TRANSFER RESTRICTED SECURITIES.A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Securities prior to (A) their resale in accordance with the terms
hereof or (B) the time that such Securities are no longer considered to be
Transfer Restricted Securities.
SECTION 3. RESALE REGISTRATION STATEMENT
(A) REGISTRATION.The Company shall cause to be filed with the
Commission as promptly as practicable after the Closing Date one or more
registration statements on Form X-0, X-0 or S-3, or other applicable form (each
a "Resale Registration Statement"), and use its reasonable best efforts to cause
such Resale Registration Statement to be declared effective by the Commission as
soon as practicable after filing (the "Effectiveness Target Date"). In
connection with the foregoing, the Company shall (A) file all pre-effective
amendments to such Resale Registration Statement as may be necessary in order to
cause such Resale Registration Statement to become effective, (B) if applicable,
file a post-effective amendment to such Resale Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Securities to be made
under the state securities and Blue Sky laws of such jurisdictions as are
necessary.
(B) Subject to the provisions of Section 5(c) hereof, the Company shall
use its reasonable best efforts to keep such Resale Registration Statement
continuously effective, supplemented and amended to the extent necessary to
ensure that it is available for resales of Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 3(a), and to
ensure that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, and all state securities or Blue Sky laws until the earlier of (i) the
date on which all Securities cease to be Transfer Restricted Securities and (ii)
two (2) years after the Closing Date.
(C) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
RESALE REGISTRATION XXXXXXXXX.Xx Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Resale Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within ten (10) business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Resale Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Resale Registration
Statement is being effected agrees to promptly furnish to the Company any and
all information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 4. REGISTRATION PROCEDURES
(A) RESALE REGISTRATION XXXXXXXXX.Xx connection with each Resale
Registration Statement, the Company shall comply with all the provisions of
Section 4(b) below and shall file and use its reasonable best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities in
accordance with the terms of this Agreement.
(B) GENERAL XXXXXXXXXX.Xx connection with any Resale Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
the Securities by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Resale Registration
Statement continuously effective and provide all requisite financial statements
during the period specified in Section 3 of this Agreement, and upon the
occurrence of any event that would cause any such Resale Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, subject to Section 4(c)
hereof, the Company shall file promptly, and as appropriate, an amendment or
supplement to such Resale Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its reasonable best efforts to cause such amendment to be
declared effective and such Resale Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Resale Registration Statement as may be
necessary to keep the Resale Registration Statement effective for the applicable
period set forth in Section 3 hereof or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Resale Registration
Statement cease to be Transfer Restricted Securities; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Act in a timely manner; and reasonably
assist Holders in complying with the provisions of the Act with respect to the
disposition of all Securities covered by such Resale Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Resale Registration
Statement or supplement to the Prospectus;
(iii) advise the selling Holders promptly and, if requested by such
Persons in writing, to confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed, and,
with respect to any Resale Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Resale Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order or other order or action
suspending the effectiveness of the Resale Registration Statement under the Act
or of the suspension by any state securities or Blue Sky commission of the
exemption, qualification or registration of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, or (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the
Resale Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Resale Registration
Statement or the Prospectus in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order or other order or take other action
suspending the effectiveness of the Resale Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the exemption, qualification or registration of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall
use its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) upon request, furnish to each selling Holder, without charge, one
copy of the Resale Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents incorporated by reference
therein and all exhibits; deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto
as such persons reasonably may request; and the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto (other than in
those states or jurisdictions in which the Company has not complied with or
satisfied the requirements of the relevant securities or Blue Sky laws) by each
of the selling Holders , if any in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(v) enter into such agreements and make such representations and
warranties and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Resale Registration Statement contemplated by this Agreement,
all to the extent usual and customary in offerings of the type contemplated
hereby and as may be reasonably requested by any Holder of Transfer Restricted
Securities in connection with any resale pursuant to any Resale Registration
statement contemplated by this Agreement.
(vi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their respective counsel in connection
with the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the selling
Holders may reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Resale Registration Statement; provided
that the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Resale Registration Statement, in any
jurisdiction where it is not now so subject;
(vii) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and registered in such names as the Holders may reasonably
request at least two (2) business days prior to any sale of Transfer Restricted
Securities made by such selling Holders;
(viii) use its reasonable best efforts to cause the Transfer Restricted
Securities covered by the Resale Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the provisions contained in Section
4(b)(vi) above;
(ix) if any fact or event contemplated by Section (b)(iii)(D) above
shall exist or have occurred, prepare as soon as practicable a supplement or
post-effective amendment to the Resale Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(x) cooperate and assist in any filings required to be made with the
NASD and use its reasonable best efforts to cause such filings to become
effective and approved by such governmental agencies or authorities as may be
necessary to enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xi) otherwise comply with all applicable rules and regulations of the
Commission;
(xii) cause all shares of Transfer Restricted Securities covered by the
Resale Registration Statement to be listed on each securities exchange or
market, if applicable, on which similar securities issued by the Company are
then listed; and
(xiii) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section 15 of
the Exchange Act.
(c) BLACKOUT.Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 4(b)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Resale Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus as contemplated by section 4(b)(xiii)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus.
The Company shall use its best efforts to take such actions as are necessary to
provide such Advice within thirty (30) days of the date of any notice from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof. If so directed by the Company, each Holder will deliver to
the Company all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities that
was current immediately prior to the time of receipt of such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Resale Registration Statement set forth in Section
3(b)(ii) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 4(b)(iii)(D)
hereof to and including the date when each selling Holder covered by such Resale
Registration Statement shall have received the copies of the supplemented or
amended Prospectus as contemplated by section 4(b)(ix) hereof or shall have
received the Advice.
SECTION 5. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance with
this Agreement will be borne by the Company, regardless whether a Resale
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the NASD); (ii)
all fees and expenses of compliance with federal securities, foreign securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
the printing of Prospectuses and new certificates representing Securities),
messenger and delivery services and telephone expenses incurred by the Company;
(iv) all fees and disbursements of counsel for the Company; (v) all application
and filing fees in connection with listing the Securities on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company.
The Company will, in any event, bear its internal expense (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties) and the expenses of any annual audit.
Each Holder shall pay all expenses of its counsel and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Transfer Restricted Securities pursuant to the Resale Registration Statement.
SECTION 6. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless (i) each Holder and
(ii) the respective representatives and agents of any Holder (any person
referred to in clause (i) or (ii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses, joint
or several (including without limitation, reimbursement of all reasonable costs
of investigating, preparing, pursuing or defending any claim or action,
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and charges of counsel) directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in (A) the Resale Registration Statement or Prospectus (or any
amendment or supplement thereto) or (B) any state securities or Blue Sky
application or other document prepared or executed by the Company (or based upon
any information furnished by the Company) for the purpose of qualifying any of
the Securities under the securities or Blue Sky laws of any state or other
jurisdiction (any such application, document or information hereinafter is
referred to as a "Blue Sky Application") or any omission or alleged omission to
state in the Resale Registration Statement or Prospectus (or any amendment or
supplement thereto) or in any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders or counsel or agents
of Holders expressly for use therein. The foregoing indemnification is in
addition to any liability which the Company may otherwise have to any
Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, and its respective directors, officers, employers or
agents and any person controlling (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company, and to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in the Resale
Registration Statement or Prospectus. The foregoing indemnification is in
addition to any liability which any Holder may otherwise have to the Company or
any Controlling Person. No Holder shall be required to indemnify the Company in
an amount greater than the product of $7.50 multiplied by the number of shares
set forth by such Holder's name in Schedule 1 hereto.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6 (except to the extent
so provided in any such other obligation). If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation, provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Indemnified Holders and
their respective officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by Indemnified Holders against the indemnifying party under this Section
6, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel (in addition to
local counsel). Each indemnified party, as a condition of the indemnity
agreements contained in this Section 6, shall use its reasonable best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action, compromise of any action or any judgment with
respect to any action the entry of which was consented to, effected without its
written consent, but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party, to the extent set forth
herein, from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, in such proportion as
shall be appropriate to reflect the relative fault of the Company on the one
hand and the Holders on the other hand with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Holders, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 6(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 6(d) shall be deemed to include, for
purposes of this Section 6(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), no
Indemnified Holder shall be required to contribute any amount in excess of the
amount by which proceeds received by such Indemnified Holder from an offering of
the Securities exceeds the amount of any damages which such Indemnified Holder
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Indemnified Holders' obligations to
contribute as provided in this Section 6(d) are several and not joint.
SECTION 7. RULE 144 AND RULE 144A
The Company hereby agrees with each Holder, for so long as such Holder owns
any Transfer Restricted Securities, to make available to such Holder the
information required by Rule 144 under the Act in order to permit resales of
such Transfer Restricted Securities by such Holder pursuant to Rule 144.
The Company hereby agrees with each Holder, for so long as such Holder owns
any Transfer Restricted Securities, to make available to such Holder the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities by such Holder pursuant to Rule 144A.
SECTION 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may sell any Transfer Restricted Security in an Underwritten
Registration pursuant to this Agreement; provided, however, if at any time prior
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to the filing of the Resale Registration Statement the Board of Directors of the
Company shall determine to file with the SEC a registration statement relating
to an offering for its own account or the account of others under the Act of any
of its equity securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans) (collectively, a
"Piggyback Registration Statement"), the Company shall send to each Holder
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written notice of such determination and, if within ten (10) days after the
effective date of such notice, such Holder shall so request in writing, the
Company shall include in such Piggyback Registration Statement the Transfer
Restricted Securities of such Holder eligible to be included in a Resale
Registration Statement, except that if, in connection with any Underwritten
Offering for the account of the Company the managing underwriter(s) thereof
shall impose a limitation on the number of shares of Common Stock which may be
included in the Piggyback Registration Statement because, in such underwriter(s)
judgment, marketing or other factors dictate such limitation is necessary to
facilitate public distribution, then the Company shall be obligated to include
in such Piggyback Registration Statement only such limited portion of the
Transfer Restricted Securities with respect to which such Holder has requested
inclusion hereunder as the underwriter shall permit. Any exclusion of Transfer
Restricted Securities shall be made pro rata among the Holders seeking to
include Transfer Restricted Securities in proportion to the number of Transfer
Restricted Securities sought to be included by such Holders.
SECTION 9. MISCELLANEOUS
(a) REMEDIES. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS.The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way breach or conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS.The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of ninety percent (90%) of the then outstanding
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being resold pursuant
to the Resale Registration Statement and that does not affect directly or
indirectly the rights of other Holders whose Transfer Restricted Securities are
not being resold pursuant to such Resale Registration Statement may be given by
the Holders of a majority of the outstanding Transfer Restricted Securities
being resold pursuant to such Resale Registration Statement.
(d) NOTICES.All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class or
certified mail, telex, telecopier or reliable overnight delivery service:
(i) if to the Company, to:
Concurrent Computer Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: E. Xxxxxxxx Xxxxxx
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Xx.
(ii) if to the Holders to:
Xxxx Xxxxxxxxxx
c/o Concurrent Computer Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
and to:
Xxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
and to:
Xxxxxx X. Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxx & Bockius
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
and to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. X'Xxxxxx, Esq. / Xxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if sent via a reliable overnight delivery service.
(e) SUCCESSORS AND ASSIGNS.This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
subsequent Holders of Transfer Restricted Securities; provided, however, that no
subsequent Holder of any Transfer Restricted Securities shall be entitled to the
benefits of this Agreement unless and until such Holder shall have agreed in
writing reasonably satisfactory to the Company to be bound by the terms hereof.
(f) COUNTERPARTS.This Agreement may be executed in any number of
counterparts, by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(g) HEADINGS.The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW.This Agreement will be governed by and construed in
accordance with the laws of the State of Georgia (exclusive of conflicts of law
principles). Courts within the state of Georgia will have jurisdiction over any
and all disputes between the parties hereto, whether in law or equity, arising
out of or relating to this agreement and the agreements, instruments and
documents contemplated hereby. The parties consent to and agree to submit to
the jurisdiction of such courts. Each of the parties hereby waives, and agrees
not to assert in any such dispute, to the fullest extent permitted by applicable
law, any claim that (i) such party is not personally subject to the jurisdiction
of such courts, (ii) such party and such party's property is immune from any
legal process issued by such courts or (iii) any litigation commenced in such
courts is brought in an inconvenient forum.
(i) XXXXXXXXXXXX.Xx the event that any one or more of the provisions
contained herein or the application thereof, in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT.This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CONCURRENT COMPUTER CORPORATION
By
---------------------------
Name:
Title:
HOLDERS:
------------------------------
Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
SCHEDULE 1
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Xxxx Xxxxxxxxxx - 1,606,986
Xxxx Xxxxxx - 599,930
Xxxxxx Xxxxxx - 26,783
