EXHIBIT 10.34
REGISTRATION RIGHTS AGREEMENT
by and between
Quantum Technologies Worldwide, Inc.
and
General Motors Corporation
Dated as of
June 12, 2001
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
CONTENTS
1. Definitions........................................................... 1
2. Request for Registration.............................................. 2
3. Company Registration.................................................. 3
4. Form S-3 Registration................................................. 4
5. Obligations of the Company............................................ 4
6. Furnish Information................................................... 6
7. Expenses of Registration.............................................. 6
8. Underwriting Requirements............................................. 7
9. Delay of Registration................................................. 8
10. Indemnification....................................................... 8
11. Reports Under the Act................................................. 11
12. Assignment of Registration Rights..................................... 11
13. Limitations on Subsequent Registration Rights......................... 12
14. Termination of Registration Rights.................................... 12
15. Miscellaneous......................................................... 12
15.1 Notices......................................................... 12
15.2 Amendments and Waivers.......................................... 13
15.3 Governing Law; Jurisdiction; Venue.............................. 13
15.4 Successors and Assigns.......................................... 13
15.5 Severability.................................................... 13
15.6 Entire Agreement; Counterparts.................................. 13
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
QUANTUM TECHNOLOGIES WORLDWIDE,
INC.
Registration Rights Agreement
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
June 12, 2001, by and among QUANTUM TECHNOLOGIES WORLDWIDE, INC., a Delaware
corporation (the "Company"), and GENERAL MOTORS CORPORATION, a Delaware
corporation (the "Investor ").
RECITALS
A. The Company is proposing to issue and transfer newly authorized shares
of its Series A Common Stock, $0.001 par value per share (such Series A Common
Stock and such shares of Common Stock into which it is convertible, the "Common
Stock") to the Investor.
B. The execution of this Agreement by the parties is a condition to the
obligation of the Investor to acquire the Common Stock.
C. The Company and the Investor desire to enter into this Agreement to
facilitate the transfer and acquisition of the Common Stock.
D. This Agreement shall become effective as of the STA Closing ("Effective
Date"), as defined in the Stock Transfer Agreement.
AGREEMENT
1. Definitions
For purposes of this Agreement, the following terms have the following
meanings:
(a) "Form S-3" means such form under the Securities Act of 1933, as amended
(the "Act"), as in effect on the date hereof or any registration form under the
Act subsequently adopted by the Securities and Exchange Commission (the "SEC")
that similarly permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC;
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-1-
(b) "Holder" means the Investor, and any person who shall hereafter
acquire at least 15% of the Common Stock held by the Investor as of the
Effective Date of this Agreement, so long as such Investor or other party holds
Registrable Securities;
(c) "register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Act and the declaration or order of effectiveness of such
registration statement or document;
(d) "Registrable Securities" means (i) any Common Stock of the Company
held as of the date hereof by the Investor or hereafter acquired by the Investor
and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Common Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned and any Common Stock which the holder
thereof is entitled to sell into the public market;
(e) "Registrable Securities then outstanding" means the number of shares
of Common Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities; and
(f) "SEC" means the Securities and Exchange Commission.
2. Request for Registration
(a) If the Company shall receive, at any time after the earlier of (i)
three (3) years after the Effective Date or (ii) six (6) months after the
effective date of the first registration statement for a public offering of
securities of the Company to the general public, a written request from the
Holders of a majority of the Registrable Securities then outstanding (the
"Initiating Holders") that the Company file a registration statement (other than
on Form S-3) under the Act covering the registration of Registrable Securities
having an aggregate proposed offering price to the public of at least
$20,000,000, then the Company shall, within twenty (20) business days after the
receipt of such request, give written notice of such request to all Holders and
shall, subject to the limitations set forth below, use commercially reasonable
efforts to effect as soon as practicable the registration under the Act of all
Registrable Securities that the Holders request to be registered in a written
request to be given within thirty (30) business days of the mailing of such
notice by the Company.
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-2-
(b) The Company is obligated to effect only two (2) registrations pursuant
to this Section 2.
(c) Notwithstanding the foregoing, if the Company shall furnish to the
Initiating Holders requesting a registration pursuant to this Section 2 within
thirty (30) business days of receiving such request: (i) a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be seriously detrimental to the
Company and its shareholders for such registration statement to be filed and it
is therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of not more than
ninety (90) calendar days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not use this right more than
once in any twelve (12)-month period, or (ii) a certificate signed by the
President of the Company stating that the Company intends within ninety (90)
calendar days of the date of such certificate to file a registration statement
for the initial public offering of securities of the Company to the general
public, in which case the Company shall not be obligated to effect the
registration requested pursuant to this Section 2 for a period of one hundred
eighty (180) calendar days following the effective date of such initial public
offering; provided, however, that the Company shall promptly notify the
-------- -------
Initiating Holders requesting a registration pursuant to this Section 2 of any
decision by the Company to abandon or indefinitely delay such initial public
offering.
3. Company Registration
If the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its stock or other securities under the Act in connection with the public
offering of such securities solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, or a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities), the Company shall, at each such
time, promptly give each Holder of Registrable Securities written notice of such
registration. Upon the written request of each such Holder given within twenty
(20) business days after the mailing of such notice by the Company, the Company
shall, subject to the provisions of Section 8, use commercially reasonable
efforts to cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered. In the event
that the Company decides for any reason not to complete the registration of
shares of Common Stock other than Registrable Securities, the Company shall have
no obligation under this Section 3 to continue with the registration of
Registrable Securities. Any request pursuant to this Section 3 to register
Registrable Securities as part of an underwritten
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-3-
public offering of Common Stock shall specify that such Registrable Securities
are to be included in the underwriting on the same terms and conditions as the
shares of Common Stock otherwise being sold through underwriters under such
registration.
4. Form S-3 Registration
(a) If the Company shall receive a written request from the Holders of
fifty percent (50%) of the Registrable Securities then outstanding that the
Company effect a registration on Form S-3, then the Company shall, within ten
(10) business days after the receipt of such request, give written notice of
such request to all Holders and shall, subject to the limitations set forth
below, use commercially reasonable efforts to effect as soon as practicable the
registration under the Act of all Registrable Securities that the Holders
request to be registered in a written request to be given within thirty (30)
business days of the mailing of such notice by the Company.
(b) Notwithstanding the foregoing, the Company shall not be obligated to
effect any such registration pursuant to this Section 4 if: (i) Form S-3 is not
available for such offering by the Holders; (ii) the Holders, together with the
holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (before deduction of any
underwriters' discounts or commissions) of less than $10,000,000; (iii) the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 registration to be filed at such time, in which
event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) calendar days
after receipt of the request of the Holders under this Section 4; provided,
--------
however, that the Company shall not use this right more than once in any twelve
-------
(12)-month period; (iv) the Company has, within the twelve (12)-month period
preceding the date of such request, already effected two (2) such registrations
on Form S-3 for the Holders pursuant to this Section 4; or (v) the Company
within the twelve (12)-month period preceding the date of such request has
effected a registration of securities in which the Holders of Registrable
Securities requesting registration pursuant to this Section 4 were entitled and
given timely notice to participate to the fullest extent they desired upon
receipt of notice pursuant to Section 2 or 3.
5. Obligations of the Company
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-4-
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) calendar days.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Act, and such
other documents as they may reasonably request to facilitate the disposition of
all securities covered by such registration statement.
(d) Use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such registration shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement, during the time when a prospectus is required to be
delivered under the 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 in the light of the circumstances then existing.
(g) At the request of any Holder selling Registrable Securities in
such registration, furnish on the date that such Registrable Securities are
delivered to the underwriters for sale in connection such registration (i) an
opinion, dated such date, of legal counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given by
Company counsel to underwriters in an underwritten public offering, addressed to
the underwriters and (ii) a letter, dated
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-5-
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters.
(h) List the Registrable Securities being registered on any national
securities exchange on which a class of the Company's equity securities is
listed or qualify the Registrable Securities being registered for inclusion on
Nasdaq if the Company does not have a class of equity securities listed on a
national securities exchange.
(i) Provide a transfer agent and registrar for the securities being
registered and a CUSIP number, not later than the effective date of the
registration statement.
6. Furnish Information
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that the selling Holders shall furnish to
the Company such information regarding themselves, the Registrable Securities
held by them and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of their Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request.
7. Expenses of Registration
In connection with any registration pursuant to Sections 2 and 3 of this
Agreement, the Company shall be responsible for the payment of all reasonable
expenses of the registration, with the exception of (a) underwriting discounts
and commissions, which shall be paid by the Holders and any other selling
holders of the Company's securities in proportion to the aggregate value of the
securities offered for sale by each of them, and (b) the fees and expenses of
more than one law firm acting as counsel to the selling Holders selected by a
majority in interest of the selling Holders, which additional counsel, if any,
shall be paid by the Holder or Holders that engage such counsel. The expenses
to be paid by the Company shall include, without limitation, all registration,
filing and qualification fees, printing and accounting fees, the fees and
disbursements of counsel for the Company and the fees and disbursements of one
counsel for the selling Holders; provided, however, that the Company shall not
-------- -------
be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2 if the registration request is subsequently withdrawn
(other than a withdrawal due to a material adverse change in the Company's
business or financial condition), unless, in the event of a registration
initiated pursuant to the
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-6-
provisions of Section 2, the Holders of a majority of the Registrable Securities
agree to forfeit the right to one demand registration. All expenses incurred in
connection with a registration requested pursuant to Section 4, including,
without limitation, all registration, filing, qualification, printer's and
accounting fees and the reasonable fees and disbursements of counsel for the
selling Holder or Holders and counsel for the Company shall be borne pro rata by
the Holder or Holders participating in the Form S-3 registration.
8. Underwriting Requirements
(a) The Holders under Section 2 must distribute the Registrable Securities
covered by their request by means of a public offering underwritten by a
reputable national or regional underwriter. The right of any Holder to include
its Registrable Securities in such registration under Section 2 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall (together with the Company as
provided in Section 5(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Holders. Notwithstanding any other provisions of
Section 2, if the underwriter advises the Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Holders shall so advise all Holders of Registrable Securities which would
otherwise have been underwritten pursuant to Section 2, and the number of shares
of Registrable Securities that may be included in the registration shall be
apportioned first pro rata among the selling Holders, including the Initiating
Holders, according to the total amount of Registrable Securities requested to be
sold in such registration by such Holders, then to the Company and then pro rata
among any other selling shareholders according to the total amount of securities
otherwise entitled to be included therein owned by each such selling
shareholder, or in such other proportions as shall mutually be agreed to by such
selling shareholders.
(b) The Company shall not be required under Section 3 to include any of
the Holders' securities in an underwritten offering of the Company's securities
unless such Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it. If the underwriters advise the
Company that marketing factors require a limitation on the number of shares,
including Registrable Securities, to be included in such offering, then the
Company shall so advise all Holders of Registrable Securities that would
otherwise have been underwritten pursuant to Section 3, and the number of
shares, including Registrable Securities, that may be included in the
registration shall be apportioned first to the Company, then pro
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-7-
rata among the selling Holders according to the total amount of Registrable
Securities requested to be sold in such registration by such Holders, then pro
rata among any other selling shareholders according to the total amount of
securities otherwise entitled to be included therein owned by each such other
selling shareholder, or in such other proportions as shall mutually be agreed to
by such selling shareholders; provided, that in no event shall the amount of
--------
securities of the selling Holders included in the registration be reduced below
twenty percent (20%) of the total amount of securities included in such
registration, unless such registration is the initial public offering of the
Company's securities, in which case the selling Holders may be excluded if the
underwriters make the determination described above and provided no other
shareholder's securities are included.
9. Delay of Registration
No Holder shall have any right to obtain or seek an injunction restraining
or otherwise delaying any registration of the Company as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any actual expenses (including legal fees and costs),
losses, claims, damages (including settlement amounts) or liabilities (joint or
several) (collectively, "Losses") to which they may become subject under the
Act, the 1934 Act or other federal or state law, insofar as such Losses arise
out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein, or
any amendments or supplements thereto, untrue in light of the circumstances
under which they were made, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) any violation or alleged violation by the Company of
the Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-8-
any state securities law. The Company will reimburse (as incurred) each such
Holder, underwriter or controlling person for any Losses reasonably incurred by
them in connection with investigating or defending any Violations; provided,
however, that the indemnity agreement contained in this Section 10(a) shall not
apply to amounts paid in settlement of any claims for Violations if such
settlement is made without the consent of the Company, which consent shall not
be unreasonably withheld, nor shall the Company be liable in any such case for
any Losses that arise out of or are based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by, or on behalf of, any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company and its officers, directors, agents and employees,
each underwriter and each other Holder selling securities in such registration
statement, and any person who controls any of the foregoing within the meaning
of the Act or the 1934 Act, against any Losses to which the Company or such
officer, director, agent, employee, or underwriter or other selling Holder or
controlling person may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such Losses arise out of or are based upon any
Violation that occurs in reliance upon and in conformity with written
information furnished by, or on behalf of, such Holder expressly for use in
connection with such registration; and each such Holder will reimburse (as
incurred) any Losses reasonably incurred by the Company or its officers,
directors, agents, employees, or underwriters or other selling Holders or
controlling persons in connection with investigating or defending any
Violations; provided, however, that (i) the indemnity agreement contained in
this Section 10(b) shall not apply to amounts paid in settlement of any claims
for Violations if such settlement is made without the consent of the Holder,
which consent shall not be unreasonably withheld and (ii) the obligations of
such Holders shall be limited to an amount equal to the gross proceeds to each
such Holder of Registrable Securities sold as contemplated herein, except in the
instance of fraud.
(c) Promptly after receipt of notice of the commencement of any action
(including any governmental action), an indemnified party will, if a claim is to
be made against any indemnifying party under this Section 10, deliver to the
indemnifying party a written notice of the commencement, and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
-------- -------
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the opinion of counsel for the indemnifying
party, representation of such indemnified party by the counsel retained
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-9-
by the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in the proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable period of time after notice
of the commencement of any such action shall relieve such indemnifying party of
any liability to the indemnified party under this Section 10 to the extent such
failure is prejudicial to its ability to defend such action, but the omission to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 10.
(d) If the indemnification provided for in this Section 10 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any Losses, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses 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 in connection with the Violations
that resulted in such Losses as well as any other relevant equitable
considerations; provided that, in no event shall any contribution by a Holder
--------
under this Section 10(d) exceed the gross proceeds to each such Holder, except
in the case of fraud by such Holder. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to, among
other things, whether the Violation resulting in such Losses 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 Violation.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section 10
shall survive the completion of any offering of Registrable Securities and the
termination of Registration Rights pursuant to Section 14.
11. Reports Under the Act
With a view to making available to the Holders the benefits of SEC Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-10-
registration or pursuant to a registration on Form S-3, the Company agrees to
use commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) calendar
days from the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) Take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) File with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, promptly upon request (i) a written statement by the Company that it
has complied with the reporting requirements of the 1934 Act (at any time after
ninety (90) calendar days from the date on which it becomes subject to such
reporting requirements), or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC that permits the selling of any such securities without registration
or pursuant to such Form S-3.
12. Assignment of Registration Rights
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be assigned by a Holder to a transferee or assignee of
such securities who shall, upon such transfer or assignment, be deemed a
"Holder" under this Agreement; provided, that the Company is, within a
--------
reasonable period of time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; provided, further,
-------- -------
that such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act and that such transferee or assignee is a
transferee or assignee that after the transfer or assignment holds at least 15%
of the amount of Registrable Securities held by the Investor as of the date
hereof.
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-11-
13. Limitations on Subsequent Registration Rights
From and after the date of this Agreement, the Company shall not, without
the prior written consent of the Holders of a majority of the Registrable
Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder to: (a) include such securities in any registration filed
under Section 2, 3 or 4, unless under the terms of such agreement such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of its securities will not reduce the amount of
the Registrable Securities of the Holders which is included; or (b) make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
Section 2(a) or within one hundred eighty (180) calendar days of the effective
date of any registration effected pursuant to Section 2.
14. Termination of Registration Rights
The registration rights granted under Sections 2, 3 and 4 of this Agreement
shall terminate as to all Holders on the earlier of (i) the tenth anniversary of
the closing of the initial public offering of the Company's securities and (ii)
the termination of the Corporate Alliance Agreement.
15. Miscellaneous
15.1 Notices
Any notice required by the terms of this Agreement shall be given in
writing and shall be (a) mailed by registered or certified mail, postage
prepaid, return receipt requested, (b) delivered by a nationally recognized
overnight courier, (c) sent by conformed facsimile or (d) otherwise delivered by
hand or by messenger. Notice shall be addressed to the Company at its principal
executive office and to the Investor or Holder at the address listed on the
signature page hereof or at such other address as such party may designate by
ten (10) days' advance written notice to the other party given in the foregoing
manner. If notice is provided by mail, notice shall be deemed to be given upon
receipt as evidenced by postal records; if by overnight courier, notice shall be
deemed to be given twenty-four (24) hours after deposit; if by facsimile, upon
completion of such facsimile transmission as conclusively evidenced by the
transmission receipt; and if by hand or messenger, upon receipt.
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-12-
15.2 Amendments and Waivers
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the Holders of a majority the Registrable Securities then outstanding.
Additional Holders may be added to this Agreement with such consent by amending
Schedule A and adding a signature page executed by such additional Holder.
15.3 Governing Law; Jurisdiction; Venue
This Agreement shall be governed by and construed under the laws of the
state of Delaware without regard to principles of conflict of laws. The parties
irrevocably consent to the jurisdiction and venue of the state and federal
courts located in Orange County, California, in connection with any action
relating to this Agreement.
15.4 Successors and Assigns
The terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective successors and assigns of the parties as
provided herein.
15.5 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
15.6 Entire Agreement; Counterparts
This Agreement constitutes the entire agreement between the parties about
its subject and supersedes all prior agreements. This Agreement may be executed
in two or more counterparts, which together shall constitute one instrument.
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE COMPANY
QUANTUM TECHNOLOGIES WORLDWIDE, INC.
By: /s/ Xxxx X. Xxxxxxx
______________________________
Name: Xxxx X. Xxxxxxx
Title: President and CEO
Address: 00000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INVESTOR
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President, GM Research &
Development and Planning
Address: 00000 Xxxxx Xxxx
M/C: 480-106-EX2
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Registration Rights Agreement QUANTUM TECHNOLOGIES, INC.
-14-
Schedule A -Additional Holders
under Registration Rights Agreement
Number
Holder Name of Shares
---------------------------------------------- -------------------
