EXHIBIT 2.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated as of June 30,
1999, is entered into by and among XxXxxx Corporation (the "Company") and the
entities set forth on Schedule 1 attached hereto (collectively, the "Selling
Holders").
RECITALS
WHEREAS, the Company and the Selling Holders have entered into a Stock
Purchase Agreement of even date herewith (the "Series A Purchase Agreement")
pursuant to which the Selling Holders purchased an aggregate of 500,000 shares
of the Company's Series A Convertible Redeemable Preferred Stock, par value
$.01 per share ("Series A Preferred Stock"), convertible into shares (the
"Conversion Shares") of the Company's common stock, par value $.01 per share
("Common Stock"); and
WHEREAS, the Company has executed a Common Stock Purchase Warrant of even
date herewith (each, a "Warrant" and collectively, the "Warrants"), pursuant to
which the Selling Holders were granted warrants to purchase an aggregate of
250,000 shares of the Company's Common Stock (the "Warrant Shares"); and
WHEREAS, the Company and the Selling Holders wish to provide for certain
arrangements with respect to the registration of the Conversion Shares and
Warrant Shares under the Securities Act.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and the consummation of the sale and purchase of
the Series A Preferred Stock pursuant to the Series A Purchase Agreement, the
issuance of the Warrants and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall have the meaning set forth in the Recitals.
"Conversion Shares" shall have the meaning set forth in the Recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registrable Shares" shall mean (i) any shares of Common Stock
purchased by, or issued to or issuable upon conversion of the Series A
Preferred Shares or exercise of the Warrants including without limitation any
Conversion Shares issued or issuable upon exercise of any and all of the Series
A Preferred Shares, (ii) any Warrant Shares issued or issuable upon exercise of
any or the Warrants and (iii) any Common Stock issued or issuable with respect
to the Conversion Shares or Warrant Shares by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Registration Expenses" shall mean the expenses so described in Section
4 of Article II.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 4 of
Article II.
"Series A Preferred Shares" shall mean the 500,000 shares of Series A
Preferred Stock purchased by the Selling Holders pursuant to the terms of the
Series A Purchase Agreement.
"Warrant" and "Warrants" shall each have the meaning set forth in the
Recitals.
"Warrant Shares" shall have the meaning set forth in the Recitals.
ARTICLE II
REGISTRATION RIGHTS
1. Registration of Conversion Shares and Warrant Shares. The Company
shall, within one hundred twenty (120) calendar days from the date hereof, file
with the Commission a registration statement on Form S-3 (or any successor form
to Form S-3) for a public resale offering by the Selling Holders of the
Registrable Shares and shall use its best efforts to cause such registration
statement to become and remain effective for the period ending on the first to
occur of (x) the date the resale of all of the Registrable Shares registered
thereunder is complete or (y) the fifth anniversary of the date hereof. If for
any reason the Company is not eligible to file such registration statement on
Form S-3 (or any successor form to Form S-3), the Company shall effect such
registration using such form as the Company is then eligible to use.
2. Piggyback Registration.
(a) If at any time after the date hereof the Company proposes to
register any shares of Common Stock under the Securities Act in connection with
an underwritten offering, either for its own account or the account of a
security holder or holders exercising their registration rights, (except
pursuant to a registration statement filed on Form S-4 or Form S-8 or such
other form as shall be prescribed under the Securities Act for the same
purposes), the Company will promptly at each such time give written notice to
the Selling Holders as provided in Section 2 of Article III of its intention to
do so. Within twenty (20) days after receipt of such notice, such Selling
Holders may request that the Company register all or part of the Registrable
Shares (the "Designated Shares"). Upon receipt of such request, the Company
shall use its best efforts to effect the registration of the Designated Shares
identified by including such Designated Shares in such registration statement.
(b) In the event that securities of the same class as the Designated
Shares are being registered by the Company in such registration statement and
such securities as well as any of the Designated Shares are to be distributed
in an underwritten offering, such Designated Shares shall be included in such
underwritten offering on the same terms and conditions as the securities being
issued by the Company for distribution pursuant to such underwritten offering;
provided, however, that if the managing underwriter of such underwritten
offering reasonably determines in good faith and advises the parties that the
inclusion in such underwritten offering of all the Designated Shares would
materially and adversely affect the success of the underwritten offering, then
the number of Designated Shares to be included in the registration statement
shall be reduced to the amount recommended in good faith by and set forth in
the opinion of such managing underwriter; provided, further, that as to the
Selling Holders exercising piggyback registration rights pursuant to this
Section 2, such reduction shall be pro rata (based on the number of shares held
by each) with respect to the Designated Shares with other persons holding
contractual incidental or "piggy-back" registration rights in such underwritten
offering.
3. Registration Procedures. If and whenever the Company is required by the
provisions of Sections 1 or 2 of Article II to effect the registration of any
Registrable Shares under the Securities Act, the Company will, as expeditiously
as practicable:
(a) Preparation of Registration Statement. Promptly prepare and file
with the Commission, a registration statement on such form as may be
appropriate under the Securities Act, and use its best efforts to cause such
registration statement to become effective.
(b) Maintain Effectiveness. Promptly prepare and file with the
Commission such amendments to the registration statement as may be necessary to
keep such registration statement effective for a period of (i) five (5) years
for any such registration statement filed pursuant to Section 1 hereof and (ii)
until the completion of the offering with respect to a registration statement
filed pursuant to Section 2 hereof, or in either instance such shorter period
which will terminate when all Registrable Shares covered by such registration
statement have been sold.
(c) Notification. Immediately notify the Selling Holders and the
managing underwriters, if any, and (if requested by any such person) confirm
such advice in writing, (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to a registration
statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any proceeding
for that purpose, (iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (iv) of the happening of any event which makes any
statement made in the registration statement, the prospectus or any document
incorporated therein by reference untrue or which requires the making of any
changes in the registration statement, the prospectus, or any document
incorporated therein by reference so that they will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statement therein not misleading,
provided, that upon such notification by the Company, the Selling Holders shall
not offer to sell Registrable Shares until the Company has notified the Selling
Holders that it has prepared such a supplement or amendment, filed such a
document, or filed and caused to become effective such post-effective
amendment, and has delivered copies thereof to the Selling Holders.
(d) Stop Orders. Make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a registration statement or the
qualification of any Registrable Shares for sale in any jurisdiction at the
earliest possible moment.
(e) Consultation with Selling Holder. Prior to the filing of any
registration statement or amendment thereto, provide copies of such document to
the Selling Holders and to the managing underwriters, if any, and make the
Company's representatives and the Company's counsel available for discussion of
such document and make such changes in such document relating to the Selling
Holders prior to the filing thereof as such Selling Holders, counsel for such
Selling Holders, or underwriters may reasonably request.
(f) Copies of Registration Statements. Furnish to each Selling Holder
and each managing underwriter, if any, without charge, at least one originally
executed copy of the registration statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference).
(g) Prospectuses. Deliver to each Selling Holder and the underwriters,
if any, without charge, as many copies of the prospectus (and each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request so long as the registration statement to which such
prospectus or any amendment or supplement thereto relates is effective.
(h) Blue Sky Laws. Prior to any public offering of Registrable Shares,
use its best efforts to register or qualify or cooperate with the Selling
Holders, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Shares for offer and
sale under the securities or blue sky laws of such jurisdictions within the
United States as any Selling Holder or underwriter reasonably requests, and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Shares covered by the
registration statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject.
(i) Amendments Upon Changes. Upon the occurrence of any event
contemplated by Sections (c)(ii), c(iii), (c)(iv) or (d) above, prepare as
promptly as practicable, a supplement or post-effective amendment to the
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 the Registrable Shares being sold
thereunder, such 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.
(j) Underwriting Agreements. Enter into such customary agreements
(including an underwriting agreement) and take all such other actions
reasonably required in connection therewith in order to expedite or facilitate
the disposition of such Registrable Shares.
(k) Compliance with Laws; Section 11(a). Otherwise use its best efforts
to comply with all applicable federal and state securities laws (including
without limitation the rules and regulations of the Commission), and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act no later than forty-five (45)
days after the end of each twelve (12) month period (or within ninety (90) days
after the end of a fiscal year).
(l) Opinions. At the request of any Selling Holder, use its best
efforts to furnish on the date that the Registrable Shares are delivered to any
underwriter for sale in connection with a registration pursuant to this
Agreement (i) an opinion of the counsel representing the Company for the
purposes of such registration, and (ii) a letter from the independent certified
public accountants of the Company, each dated such date and in form and
substance as is customarily given by counsel and independent certified public
accountants to underwriters in an underwritten public offering, addressed to
any Selling Holders' underwriter and to the Selling Holders.
4. Expenses. All expenses incurred by the Company in complying with
Sections 1, 2 and 3 of Article II, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., fees of transfer agents and
registrars and costs of insurance, but excluding any Selling Expenses, are
called "Registration Expenses." All underwriting discounts and selling
commissions applicable to the sale of Registrable Shares and fees and
disbursements of counsel for the Selling Holders of Registrable Shares are
called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 1 or 2 of Article II. All Selling
Expenses in connection with each registration statement under Sections 1 or 2
of Article II shall be borne by the participating Selling Holders in proportion
to the number of Registrable Shares sold by each, or by such participating
Selling Holders other than the Company (except to the extent the Company shall
be a seller) as they may agree.
5. Indemnification and Contribution. (a) In the event of a registration of
any of the Registrable Shares under the Securities Act pursuant to Sections 1
or 2 of Article II, the Company shall indemnify and hold harmless each Selling
Holder of such Registrable Shares thereunder and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller 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 Shares were registered under the Securities Act pursuant
to Sections 1 or 2 of Article II, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, 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, and will reimburse each such Selling Holder and each
such controlling person for any legal expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by any such Selling Holder or any such controlling person
in writing specifically for use in such registration statement or prospectus,
(ii) such Selling Holder's failure timely to deliver a copy of the prospectus,
(iii) an error or omission in a preliminary prospectus that is subsequently
corrected in a final prospectus or an error or omission in the registration
statement or any prospectus that is corrected in a supplement or amendment that
is timely delivered by the Company to such Selling Holder but which such
Selling Holder fails timely to deliver, or (iv) the violation by such Selling
Holder of Section 3(c) hereof.
(b) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to Sections 1 or 2 of Article II, each
Selling Holder of such Registrable Shares thereunder, severally and not
jointly, shall indemnify and hold harmless the Company, each person, if any,
who controls the Company within the meaning of the Securities Act, each officer
of the Company who signs the registration statement, each director of the
Company, each underwriter and each person who controls any underwriter within
the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter 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 the registration statement under
which such Registrable Shares were registered under the Securities Act pursuant
to Sections 1 or 2 of Article II, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, 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, and will reimburse the Company and each such officer,
director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that such
Selling Holder will be, severally and not jointly, liable hereunder in any such
case if and only to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information pertaining to such Selling Holder, as such,
furnished in writing to the Company by such Selling Holder specifically for use
in such registration statement or prospectus, (ii) such Selling Holder's
failure timely to deliver a copy of the prospectus, (iii) an error or omission
in a preliminary prospectus that is subsequently corrected in a final
prospectus or an error or omission in the registration statement or any
prospectus that is corrected in a supplement or amendment that is timely
delivered by the Company to such Seller Holder but which such Selling Holder
fails timely to deliver, or (iv) the violation by such Selling Holder of
Section 3(c) hereof; and provided, further, that the aggregate liability of
each Selling Holder hereunder shall be limited to the aggregate price to the
public of the shares sold by such Selling Holder in such registration.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 5 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 5 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 5 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof; provided, however,
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred. In any
such case, the indemnifying party shall not, in connection with any one action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
for all indemnified parties. Notwithstanding anything else in this Agreement to
the contrary, no indemnified party shall, without the prior written consent of
the indemnifying party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which indemnification may be sought hereunder.
6. Changes in Common Stock or Preferred Stock. If, and as often as, there
is any change in the Common Stock or the Series A Preferred Stock by way of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, then appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to
the Registrable Shares as so changed.
7. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Shares to the public without registration, at all
times unless any registration statement covering a public offering of
securities of the Company under the Securities Act pursuant to Section 1 of
Articles II shall have become and remains effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its 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
(c) furnish to each holder of Registrable Shares forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144.
8. Limitations on Registration Rights. From and after the date of this
Agreement, the Company shall not enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder (a) the right to require the Company, upon any registration
of any of its securities, to include, among the securities which the Company is
then registering, securities owned by such holder, 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 limit the number of shares of Registrable Shares sought to
be included by the Selling Holders or reduce the offering price thereof; or (b)
the right to require the Company to initiate any registration of any securities
of the Company without the consent of the director designated by the Selling
Holders.
9. Exception to Registration. The Company shall not be required to effect
a registration under this Article II if (i) in the written opinion of counsel
for the Company, which counsel and the opinion so rendered shall be reasonably
acceptable to the Selling Holders, such Selling Holders may sell without
registration under the Act all Registrable Shares for which they requested
registration under the provisions of the Act and in the manner and in the
quantity in which the Registrable Shares were proposed to be sold, or (ii) the
Company shall have obtained from the Commission a "noaction" letter to that
effect.
10. Listing of Shares. The Company shall, at its expense, list all of the
shares owned by each Selling Holder of any class of stock of the Company that
is at any time listed on a national securities exchange with such national
securities exchange.
11. Intentionally Omitted.
12. Intentionally Omitted.
13. "Black-Out" Rights. The Company may postpone for up to ninety (90)
days the filing or the effectiveness of a registration statement for any
registration filed pursuant to Section 2 of Article 2 hereof, if the Company's
Board of Directors determines that such registration would not be in the best
interests of the Company at the time.
14. Restrictions on Public Sale by the Company and Others. The Company
agrees not to effect any public sale or distribution of its Common Stock,
during a period, not to exceed forty-five (45) days, beginning on the closing
date of an underwritten offering made pursuant to a registration statement
filed under Section 2 of Article II to the extent timely notified in writing by
the managing underwriters (except as part of such underwritten registration or
pursuant to registrations on Form S-4 or Form S-8 or any successor form to such
forms).
15. Underwriting Agreement. Each Selling Holder participating in an
underwritten offering pursuant to Section 2 of Article II shall enter into a
customary underwriting agreement on terms reasonably satisfactory to the
managing underwriter.
ARTICLE III
MISCELLANEOUS
1. Assignment. All covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto.
2. Notices. All notices, requests, consents, reports and demands shall be
in writing and shall be hand delivered, sent by facsimile or other electronic
medium, or mailed, postage prepaid, to the Company or the Selling Holders at
the address set forth below or to such other address as may be furnished in
writing to the other parties hereto:
The Company: XxXxxx Corporation
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with copy to: Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The Selling Holders: The address set forth opposite the Purchaser's name on Schedule 1
attached hereto.
with copy to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx., P.C.
Tel: (000)000-0000
Fax: (000) 000-0000
3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
4. Waiver, Modification, etc. Neither this Agreement nor any provision
hereof may be waived, modified, amended or terminated except by a written
agreement signed by the parties hereto; provided, however, that Selling Holders
owning at least a majority of the Registrable Shares owned by all Selling
Holders may effect any such waiver, modification, amendment or termination on
behalf of all of the Selling Holders. Each of the Selling Holders and the
Company represents that he or it is not a party to any other agreement which
would prevent him or it from performing his or its obligations hereunder. No
waiver of any breach or default hereunder shall be considered valid unless in
writing, and no such waiver shall be deemed a waiver of any subsequent breach
or default of the same or similar nature.
5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6. Invalidity, etc. 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.
7. Captions. Captions are for convenience only and are not deemed to be
part of this Agreement.
8. Term. This Agreement and the respective rights and obligations of the
parties hereto shall terminate immediately upon the earlier of (a) the sale of
all of the Registrable Shares owned by each of the Selling Holders and (b) the
tenth anniversary of the date hereof.
9. Specific Enforcement. Each Selling Holder expressly agrees that the
other Selling Holders and the Company may be irreparably damaged if this
Agreement is not specifically enforced. Upon a breach or threatened breach of
the terms, covenants and/or conditions of this Agreement by any Selling Holder
or the Company, the other Selling Holders and the Company shall, in addition to
all other remedies, each be entitled to apply for a temporary or permanent
injunction, and/or a decree for specific performance, in accordance with the
provisions hereof and that the Company will not oppose an application seeking
such specific performance.
10. Attorneys' Fees. Should any litigation be commenced (including any
proceedings in a bankruptcy court) between parties hereto or their
representatives concerning any provision of this Agreement or the rights and
duties of any person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason
of such litigation.
11. Transfers of Rights. This Agreement, and the rights and obligations of
each Selling Holder hereunder, may be assigned by such Selling Holder to any
person or entity acquiring Registrable Shares owned by such Selling Holder
(subject to adjustment for stock splits, stock dividends, recapitalization or
similar events), and such transferee shall be deemed a "Selling Holder" for
purposes of this Agreement; provided that the transferee provides written
notice of such assignment to the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Registration Rights Agreement as of the date first above written. XXXXXX
CORPORATION
XXXXXX CORPORATION
/s/ Xxxx X. Xxxx
--------------------------
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer, Treasurer and
Secretary
SELLING HOLDERS
ADVENT GLOBAL GECC III LIMITED PARTNERSHIP
By: Advent Global Management Limited Partnership, General Partner
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
ENVIROTECH INVESTMENT FUND I LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
ADWEST LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
OAKSTONE VENTURES LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
SCHEDULE 1
SELLING HOLDERS
Purchaser Purchased Shares Consideration
Advent Global GECC III Limited Partnership 350,000 $7,000,000
EnviroTech Investment Fund I Limited Partnership 71,250 $1,425,000
Adwest Limited Partnership 20,000 $400,000
Oakstone Ventures Limited Partnership 50,000 $1,000,000
Advent Partners Limited Partnership 8,750 $175,000
Totals 500,000 $10,000,000
c/o Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
