REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT, dated September 30, 1999, is entered
into by General Automation, Inc., a Delaware corporation (the "Company"), and
Radisys CPD, Inc., a Delaware corporation formerly known as Texas Micro, Inc.
and also formerly known as Sequoia Systems, Inc. (" Radisys").
1. Definitions. Unless the context otherwise requires, the terms defined in
this Section 1 shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
herein defined.
1.1 Agreement. "Agreement" means this Registration Rights Agreement.
1.2 Board. "Board" means the Board of Directors of the Company.
1.3 Commission. "Commission" means the United States Securities and
Exchange Commission.
1.4 Common Stock. "Common Stock" means the Common Stock of the
Company.
1.5 Holder. "Holder" of any security means the record owner of such
security.
1.6 Radisys' Registrable Securities. "Radisys' Registrable Securities"
means (a) the 1,133,333 shares of Common Stock to be issued by the Company to
Radisys pursuant to that certain letter agreement of even date herewith between
the Company and Radisys ; and (b) any securities issued or issuable with respect
to the Common Stock referred to in clause (a) above by way of a stock dividend
or stock split or in connection with a combination of shares, reclassification,
recapitalization, merger or consolidation or reorganization; provided, however,
that such shares of Common Stock shall only be treated as Radisys' Registrable
Securities if and so long as they have not been (i) sold to or through a broker
or dealer or underwriter in a public distribution or a public securities
transaction; or (ii) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof or other applicable exemption so that all transfer restrictions and
restrictive legends with respect to such Common Stock are removed upon the
consummation of such sale.
1.7 Other Registrable Securities. "Other Registrable Securities" means
all Common Stock, whether now outstanding or hereafter issued, which the Company
has agreed to register, or may hereafter agree to register.
EXHIBIT C
1.8 Person. "Person" includes any natural person, corporation, trust,
association, company, partnership, joint venture and other entity and any
government, governmental agency, instrumentality or political subdivision.
1.9 Register, Registered and Registration. The terms "register,"
"registered" and "registration" refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness of such registration statement.
1.10 Registrable Securities. "Registrable Securities" means the Other
Registrable Securities and Radisys' Registrable Securities, collectively.
1.11 Securities Act. "Securities Act" means the United States
Securities Act of 1933, as amended.
2. Incidental Registration.
2.1 Notice to Radisys , Etc. Each time the Company shall determine to
file a registration statement under the Securities Act (other than on Form X-0,
X-0 or a registration statement on any form covering solely an employee benefit
plan) in connection with the proposed offer and sale for money of any of its
securities for its own account, the Company agrees to promptly give written
notice of its determination to Radisys . Upon the written request of Radisys
given within twenty (20) days after the receipt of such written notice from the
Company, subject to Section 2.3 below, the Company agrees to cause all of
Radisys' Registrable Securities, or such portion thereof as Radisys has
specified to the Company in writing, to be included in such registration
statement and registered under the Securities Act, all to the extent requisite
to permit the sale or other disposition by Radisys of Radisys' Registrable
Securities to be so registered.
2.2 Inclusion in Underwriting. If the registration of which the
Company gives written notice pursuant to Section 2.1 is for a public offering
involving an underwriting, the Company agrees to so advise Radisys as a part of
its written notice. In such event, the right of Radisys to registration pursuant
to this Section 2 shall be conditioned upon Radisys' participation in such
underwriting and the inclusion of Radisys' Registrable Securities in the
underwriting to the extent provided herein. If any of Radisys' Registrable
Securities are to be distributed through such underwriting, Radisys shall enter
into (together with the Company and the other Holders distributing their
securities through such underwriting) an underwriting agreement with the
underwriter or underwriters selected for such underwriting by the Company,
provided that such underwriting agreement is in customary form.
2.3 Limitations. Notwithstanding any other provision of this Section
2, if the managing underwriter of an underwritten distribution advises the
Company in writing that in its
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good faith judgment the number of shares of Registrable Securities requested to
be registered exceeds the number of shares of Registrable Securities which can
be sold in such offering, then the number of shares of Registrable Securities so
requested to be included in the offering shall be reduced to that number of
shares which in the good faith judgment of the managing underwriter can be sold
in such offering. Such reduced number of shares to be included in the
registration shall be allocated as follows: (a) first to the Company with
respect to all of the shares to be registered for the account of the Company;
and (b) second, to the Holders of shares of Registrable Securities requesting to
participate in such registration, on a pro rata basis based on the total number
of shares of Registrable Securities held by each such Holder. All shares of
Radisys' Registrable Securities which are excluded from the underwriting by
reason of the underwriter's marketing limitation and all shares of Radisys'
Registrable Securities not originally requested to be so included shall not be
included in such registration.
2.4 Abandonment of Registration. Notwithstanding any other provision
of this Agreement, the Company may at any time, at the discretion of the Board,
abandon or terminate any registration statement, either prior to or after its
filing with the Commission, without liability or obligation to Radisys.
3. Expenses.
3.1 Registration Expenses. Subject to Section 3.2 below, the Company
agrees to bear all fees, costs and expenses with respect to the inclusion of
shares of Radisys' Registrable Securities in any registration statement pursuant
to Section 2 hereof.
3.2 Company Expenses; Expenses of Radisys. The fees, costs and
expenses of registration to be borne as provided in Section 3.1 above shall
consist of all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and disbursements
of counsel for the underwriter or underwriters of such securities (if the
Company and/or selling security holders are otherwise required to bear such fees
and disbursements), and all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in which
the securities to be offered are to be registered or qualified. The fees, costs
and expenses to be borne by the Company under Section 3.1 above shall not
include the fees, costs or expenses of any counsel to Radisys or stock transfer
taxes or underwriters' discounts and commissions relating to any of Radisys'
Registrable Securities.
4. Indemnification.
4.1 Indemnification by Company. The Company hereby agrees to indemnify
and hold harmless Radisys, its officers, directors and each Person who controls
Radisys within the meaning of the Securities Act, from and against, and agrees
to reimburse Radisys, its officers,
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directors and controlling Persons with respect to, any and all claims, actions
(actual or threatened), demands, losses, damages, liabilities, costs and
expenses, including without limitation attorneys' fees, to which any such
indemnified Person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration statement, any
prospectus contained therein, or any amendment or supplement thereto, 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, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent that any such claim, action, demand, loss, damage, liability,
cost or expense suffered by Radisys, its officers, directors and controlling
Persons is caused by an untrue statement or alleged untrue statement or omission
or alleged omission so made in strict conformity with written information
furnished by Radisys specifically for use in the preparation thereof; provided,
further, that with respect to an untrue statement or alleged untrue statement or
omission or alleged omission made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective (or an amended prospectus filed with
the Commission pursuant to Rule 424(b)) (the "Final Prospectus"), or made in the
Final Prospectus but eliminated in any amendment or supplement filed subsequent
to the Final Prospectus (a "Subsequent Amendment"), this indemnity shall not
inure to the benefit of Radisys, its officers, directors or controlling Persons
if, having previously been furnished by or on behalf of the Company with copies
of the Final Prospectus or Subsequent Amendment, as applicable, Radisys
thereafter fails to deliver, prior to or concurrently with the sale of
securities to such person, a copy of the Final Prospectus or Subsequent
Amendment, as applicable, to the person asserting the claim, action, demand,
loss, damage, liability, cost or expense.
4.2 Indemnification by Radisys. If any shares of Radisys' Registrable
Securities are included in a registration statement pursuant to the provisions
of this Agreement, Radisys shall indemnify and hold harmless the Company, its
officers, directors, legal counsel and accountants and each Person who controls
the Company within the meaning of the Securities Act, from and against, and
agrees to reimburse the Company, its officers, directors, legal counsel,
accountants and controlling Persons with respect to, any and all claims,
actions, demands, losses, damages, liabilities, costs or expenses, including
without limitation attorneys' fees, to which the Company, its officers,
directors, legal counsel, accountants or such controlling Persons may become
subject under the Securities Act or otherwise, insofar as such claims, actions,
demands, losses, damages, liabilities, costs or expenses are caused by any
untrue or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or are caused by the omission or the 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was so made in reliance upon and in strict conformity with written
information furnished by Radisys specifically for use in the preparation
thereof.
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4.3 Indemnification Procedure. Promptly after receipt by a party
indemnified pursuant to the provisions of Section 4.1 or 4.2 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of Section 4.1 or
4.2, notify the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section 4 and
shall not relieve the indemnifying party from liability under this Section 4;
provided that if the indemnifying party has not received notice of the claim and
the indemnified party fails to vigorously defend the claim or settles or
compromises the claim without the approval of the indemnifying party, the
indemnifying party shall be relieved of liability under this Section 4. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
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 there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party shall have the right,
at its own cost and expense, to select separate counsel (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties). Upon the permitted assumption by
the indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under Section 4.1 or 4.2 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof (other than reasonable costs of investigation) unless (i) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time, (ii) the indemnifying party and its counsel do not actively and vigorously
pursue the defense of such action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. No indemnifying party shall be liable to an indemnified
party for any settlement of any action or claim without the consent of the
indemnifying party and no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such claim or
litigation.
4.4 Contribution. If the indemnification provided for in Section 4.1
or 4.2 is held by a court of competent jurisdiction to be unavailable to a party
to be indemnified with respect to any claims, actions, demands, losses, damages,
liabilities, costs or expenses referred to therein, then each indemnifying party
under any such Section, in lieu of indemnifying such indemnified party
thereunder, hereby agrees to contribute to the amount paid or payable by such
indemnified party as a result of such claims, actions, demands, losses, damages,
liabilities, costs or expenses, including without limitation attorneys' fees, in
such proportion as is appropriate to
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reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which resulted in such claims, actions, demands, losses, damages, liabilities,
costs or expenses, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
4.5 Limitation on Radisys' Obligations. Notwithstanding the foregoing,
in no event shall Radisys' indemnification or contribution obligations under
this Section 4 exceed an amount equal to the per share public offering price
(less any underwriting discount and commissions) multiplied by the number of
shares of Radisys' Registrable Securities sold pursuant to the registration
statement which gives rise to such obligation to contribute or indemnify (less
the aggregate amount of any damages which Radisys has otherwise been required to
pay in respect of such claim, action, demand, loss, damage, liability, cost or
expense or any substantially similar claim, action, demand, loss, damage,
liability, cost or expense arising from the sale of Radisys' Registrable
Securities).
4.6 Exceptions in Event of Fraud. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution hereunder from any person who was not guilty
of such fraudulent misrepresentation.
5. Radisys Information. If any shares of Radisys' Registrable Securities
are to be included in any registration to be effected pursuant to this
Agreement, the Company may require Radisys to furnish the Company with such
information with respect to Radisys and the distribution of such shares of
Radisys' Registrable Securities as the Company may from time to time reasonably
request in writing to comply with such disclosure obligations as shall be
required by law or by the Commission in connection therewith, and Radisys shall
furnish the Company with such information.
6. Forms. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as the forms herein referenced.
7. Transfer of Registration Rights. The rights to cause the Company to
register securities granted to Radisys pursuant to this Agreement may not be
transferred or assigned by Radisys.
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8. Miscellaneous.
8.1 Waivers and Amendments. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally or by course of
dealing, but only by a statement in writing signed by the Company and Radisys.
8.2 Notices. All notices, requests, demands, and other communications
required to or permitted to be given under this Agreement shall be in writing
and shall be conclusively deemed to have been duly given (i) when hand delivered
to the other party; or (ii) when received when sent by facsimile at the address
and number set forth below (provided, however, that notices given by facsimile
shall not be effective unless either (a) a duplicate copy of such facsimile
notice is promptly given by depositing the same in a United States post office
with first-class postage prepaid and addressed to the parties as set forth
below, or (b) the receiving party delivers a written confirmation of receipt for
such notice either by facsimile or any other method permitted under this
Section; additionally, any notice given facsimile shall be deemed received on
the next business day if such notice is received after 5:00 p.m. (recipient's
time) or on a nonbusiness day); or (iii) three (3) business days after the same
have been deposited in a United States post office with first class or certified
mail return receipt requested postage prepaid and addressed to the parties as
set forth below; or (iv) the next business day after the same have been
deposited with a national overnight delivery service reasonably approved by the
parties (Federal Express and DHL WorldWide Express being deemed approved by the
parties), postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider.
To: General Automation, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
FAX: (000) 000-0000
To: Radisys CPD , Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
FAX: (000) 000-0000
Each party shall make an ordinary, good faith effort to ensure that it will
accept or receive notices that are given in accordance with this Section, and
that any person to be given notice actually receives such notice. A party may
change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section by giving the other party written notice
of the new address in the manner set forth above.
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8.3 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
8.4 Headings. The headings of the sections, subsections and paragraphs
of this Agreement have been inserted for convenience of reference only and do
not constitute a part of this Agreement.
8.5 Choice of Law. It is the intention of the parties that the
internal substantive laws, and not the laws of conflicts, of the State of
California should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
8.6 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
In witness whereof, the parties hereto have executed this Agreement.
GENERAL AUTOMATION, INC. RADISYS CPD, INC.
By: XXXX XXXXXXXX By: XXXXXXXX X. XXXXX
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Xxxx Xxxxxxxx, President
Its: Xxxxxxxx X. Xxxxx, President
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(Please print name and title)
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