REGISTRATION RIGHTS AGREEMENT
Exhibit 2
This Registration Rights Agreement (this “Agreement”) is made as of December 8, 2006,
among Argan, Inc., a Delaware corporation (the “Company”), and the parties identified on
Schedule A attached hereto (each a “Stockholder” or “Holder”).
Recital:
The Company and Stockholders are parties to that certain Stock Purchase Agreement of even date
herewith (the “Purchase Agreement”), whereby Stockholders purchased 1,000,000 shares of the common
stock of the Company, par value $0.15 per share (the “Common Stock”). Capitalized terms used but
not defined in this Agreement have the meanings assigned to such terms in the Purchase Agreement.
As an inducement to Stockholders to enter into the Purchase Agreement, the Company agrees with
Stockholders as follows:
Agreement:
Now, Therefore, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 Affiliates. “Affiliate” shall mean any person that, directly or indirectly, through one
or more intermediaries, controls or is controlled by, or is under common control with, any party
specified in this Agreement.
1.2 Commission. “Commission” shall mean the United States Securities Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.3 Common Shares. “Common Shares” shall mean the shares of Common Stock issued at any time
to the Stockholders pursuant to the Purchase Agreement.
1.4 Exchange Act. “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 from time to time.
1.5 Person. “Person” shall mean any individual, partnership, limited liability company,
corporation, trust or other entity.
1.6 Register; Registered; Registration. “Register,” “registered” and “registration” shall
refer to a registration effected by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of the effectiveness of such registration
statement by the Commission.
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1.7 Registrable Shares. “Registrable Shares” shall mean (i) the Common Shares and (ii) all
shares of the Company’s Common Stock issued as a dividend on, or other distribution with respect
to, or in exchange or in replacement of, the Common Shares, until, in the case of any such
security, the earliest of (i) its effective registration under the Securities Act and resale in
accordance with the registration statement covering it, (ii) the earliest date all of such shares
may be sold pursuant to Rule 144(k) under the Securities Act, (iii) its sale pursuant to Rule 144
or otherwise, except in sales referenced in the proviso to Section 5.1.
1.9 Registration Expenses. “Registration Expenses” shall mean all expenses incurred by the
Company in complying with Section 3, including all registration and filing fees, exchange
listing fees, printing expenses, fees and disbursements of counsel for the Company, state
securities’ law fees and expenses, and the expense of any special consents and advice or similar
audit services of independent auditors incident to or required by any such registration.
1.10 Securities Act. “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 from time to time.
1.11 Selling Expenses. “Selling Expenses” shall mean any underwriting discounts and selling
commissions associated with the sale of Registrable Securities by a Holder hereunder. Selling
Expenses are and shall be the responsibility of the Holders.
2. Restrictions on Transfer.
2.1 Notice of Proposed Transfers. Unless there is an effective registration statement under
the Securities Act covering a proposed transfer, Stockholder shall notify the Company of its
intention to affect a transfer of any of its Common Shares. Such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall be accompanied (except
that the requirements set forth in the balance of this sentence need not be complied with where the
proposed transaction complies with Rule 144 as long as the Company is furnished with evidence of
compliance with such rule) by:
(a) an unqualified written opinion of legal counsel which is reasonably satisfactory to the
Company addressed to the Company’s counsel, to the effect that the proposed transfer of the Common
Shares may be effected without registration of the Securities Act; or
(b) a “no action” letter from the Commission to the effect that the distribution of such
securities without registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto;
provided, that this Section 2.1 shall not require a legal opinion or “no action letter” in
connection with any transfer described in the proviso to Section 5.1 of this Agreement.
2.2 Compliance. Each certificate evidencing the Common Shares transferred as above provided
shall bear the appropriate restrictive legend set forth in the Purchase Agreement, except that such
certificate shall not bear such restrictive legend if in the opinion of
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counsel for the Company such legend is not required in order to establish compliance with any
provisions of the Securities Act or applicable state securities laws.
3. Registration Rights
3.1 Shelf Registration.
(a) The Company shall prepare and file with the Commission as soon as practicable but in no
event later than 120 days after the closing of the transaction contemplated by the Purchase
Agreement, a registration statement (the “Initial Shelf Registration Statement,” and together with
any Subsequent Shelf Registration Statement (as defined below), including, in each case, the
prospectus, amendments and supplements to such registration statements, including post-effective
amendments, all exhibits, and all materials incorporated by reference or deemed to be incorporated
by reference in such registration statements, are herein collectively referred to as the “Shelf
Registration Statement”) for an offering to be made on a delayed or continuous basis pursuant to
Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”) (the “Shelf
Registration”), registering the resale from time to time by Stockholders of all of the Registrable
Securities. The Initial Shelf Registration Statement shall be on an appropriate form under the
Securities Act permitting registration of such Registrable Securities for resale by Stockholders
from time to time as set forth in the Initial Shelf Registration Statement. The Company shall use
its best efforts to cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act as promptly as is practicable and to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously effective under the
Securities Act to permit the prospectus included therein to be lawfully delivered by the
Stockholders, for a period that will terminate when (i) all the Registrable Securities covered by
the Shelf Registration Statement have been sold pursuant thereto or (except in sales described in
the proviso to Section 5.1) otherwise or (ii) such Registrable Securities may be sold pursuant to
the provisions of Rule 144 under the Securities Act (such period, the “Effectiveness Period”).
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration
Statement ceases to be effective for any reason at any time during the Effectiveness Period (other
than because all Registrable Securities registered thereunder have been resold pursuant thereto or
have otherwise ceased to be Registrable Securities), the Company shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event
shall within thirty (30) days of such cessation of effectiveness amend such Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities (a “Subsequent Shelf
Registration Statement”). If a Subsequent Shelf Registration Statement is filed, the Company shall
use its best efforts to cause the Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration Statement if required by
the rules, regulations or instructions applicable to the registration form used by the Company for
such Shelf Registration Statement, if required by the Securities Act.
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(d) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall
cause the Shelf Registration Statement and the related prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein not misleading.
3.2 Registration Procedures. In connection with the Shelf Registration contemplated by
Section 3.1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Stockholder, prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and the Company shall use its best efforts
to reflect in the Shelf Registration Statement, when so filed with the Commission, such comments as
a Stockholder may reasonably and timely propose.
(b) The Company shall give written notice to each Stockholder (which notice pursuant to
clauses (ii) through (v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or supplements to the Shelf
Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the
Shelf Registration Statement or the prospectus in order that the Shelf Registration
Statement or the prospectus do not contain an untrue statement of a material fact nor omit
to state a material fact required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances under which they were
made) not misleading.
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(c) The Company shall make every reasonable effort to obtain the withdrawal at the earliest
possible time, of any order suspending the effectiveness of the Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been qualified for sale.
(d) The Company shall furnish to each Stockholder, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if such Stockholder so requests, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall, during the Effectiveness Period, deliver to each Stockholder, without
charge, except for normal copying and actual delivery costs, as many copies of the prospectus
(including each preliminary prospectus, if any) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Stockholder may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by Stockholders in connection with the offering and sale of the
Registrable Securities covered by the prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(f) Prior to any public offering of the Registrable Securities pursuant to any Shelf
Registration Statement the Company shall register or qualify or cooperate with the Stockholders and
their counsel in connection with the registration or qualification of the Registrable Securities
for offer and sale under the securities or “blue sky” laws of such states of the United States as
any Stockholder reasonably requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered
by such Shelf Registration Statement, provided, however, that in no event shall the Company be
required to qualify to do business as a foreign corporation in any jurisdiction where it would not,
but for the requirements of this paragraph (f), be required to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general service of process in any such
jurisdiction.
(g) The Company shall cooperate with Stockholders to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations and registered in
such names as the Holders may request a reasonable period of time prior to sales of the Registrable
Securities pursuant to such Shelf Registration Statement. Stockholders shall provide such
representations as may be reasonably requested by the Company’s transfer agent in this regard.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section
3.2(b) above during the period for which the Company is required to maintain an effective Shelf
Registration Statement, the Company shall promptly prepare and file a post-effective amendment to
the Shelf Registration Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Stockholders, the prospectus will not contain an
untrue statement of a material fact or omit to state any material
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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. If the Company notifies the
Stockholders in accordance with paragraphs (ii) through (v) of Section 3.2(b) above to suspend the
use of the prospectus until the requisite changes to the prospectus have been made, then each
Stockholder shall suspend use of such prospectus and, if so directed by the Company, destroy or
deliver to the Company all copies then in Stockholder’s possession of the prospectus covering such
Registrable Securities that was in effect at the time of such notice (such period during which the
availability of the Shelf Registration Statement and any related prospectus is suspended being a
“Deferral Period”). The period of effectiveness of the Shelf Registration Statement provided for
in Section 3.1(a) above shall be extended by the number of days from and including the date of the
giving of such notice to and including the date when the Holders of Registrable Securities shall
have received such amended or supplemented prospectus pursuant to this Section 3.2(h). The Company
will use its best efforts to ensure that the use of the prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right under this Section 3.2(h) to
suspend the availability of the Shelf Registration Statement or any prospectus for one or more
periods not to exceed 30 days in any 3 month period and not to exceed, in the aggregate, 90 days in
any 12 month period.
(i) The Company shall prepare and file with the Commission such amendments and post-effective
amendments to each Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective for the applicable period specified in Section 3.1(a) and shall
cause the related prospectus to be supplemented by any required prospectus supplement to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act. The
Company will comply with all rules and regulations of the Commission to the extent and so long as
they are applicable to the Shelf Registration and the Company will make generally available to its
securityholders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the effective date of
the Shelf Registration Statement, which statement shall cover such 12-month period.
(j) The Company may require Stockholders to furnish to the Company such information regarding
the Stockholders and the distribution of the Registrable Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration Statement.
(k) The Company shall (i) make reasonably available for inspection by Stockholders, any
underwriter participating in any disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by Stockholders or any such underwriter, all relevant
financial and other records, pertinent corporate documents and properties of the Company and (ii)
cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant
information reasonably requested by Stockholders or any such underwriter, attorney, accountant or
agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act.
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(l) The Company shall use its best efforts to take all other steps necessary to effect the
registration of the Registrable Securities covered by a Shelf Registration Statement contemplated
hereby.
(m) The Company shall as promptly as practicable (if reasonably requested by Stockholders),
incorporate in a prospectus supplement or post-effective amendment to the Shelf Registration
Statement such information as any Stockholder or shall, on the basis of an opinion of nationally
recognized counsel experienced in such matters, determine to be required to be included therein and
make any required filings of such prospectus supplement or such post-effective amendment;
provided that the Company shall not be required to take any actions under this Section
3.2(m) that are not, in the reasonable opinion of counsel for the Company, in compliance with
applicable law.
3.3 Expenses of Registration. The Company shall pay all Registration Expenses incurred in
connection with the performance of the Company’s obligations under this Agreement.
4. Indemnification
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless each
Stockholder and its Affiliates, against all claims, losses, damages and liabilities, joint or
several (or actions in respect thereof, and including, but not limited to, any claims, losses,
damages, liabilities or actions relating to purchases and sales of the Registrable Securities),
including any of the foregoing incurred in settlement of any litigation, commenced or threatened,
to which any of them may become subject under the Securities Act, the Exchange Act or other federal
or state law, arising out of or based on the following:
(a) any untrue statement or alleged untrue statement of a material fact contained in any such
registration statement, preliminary prospectus, prospectus, offering circular or other similar
document (including any related registration statement, notification or the like, and including any
amendment or supplement thereto) incident to any such registration, or based on any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(b) any violation by the Company of any federal, state or common law rule or regulation
applicable to the Company in connection with any such registration, qualification or compliance;
and
(c) any legal and any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, as incurred related to the foregoing.
4.2 Indemnification by Stockholders. If Registrable Securities held by Stockholders are
included in the securities as to which such registration is being effected, each Stockholder shall,
severally and not jointly, indemnify the Company, each of its officers and directors, each
underwriter and each person who controls any underwriter, and each person, if
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any, who controls the Company or any such underwriter within the meaning of Section 15 of the
Securities Act, and each person affiliated with or retained by the Company and who may be subject
to liability under any applicable securities laws, against all claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement
of any litigation, commenced or threatened, to which they may become subject under the Securities
Act or other federal or state law, arising out of or based on:
(a) any untrue statement or alleged untrue statement of a material fact contained in any such
registration statement, prospectus, offering circular or other similar document, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances under which they were
made, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such Stockholder and stated
to be specifically for use therein; and
(b) any legal and other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, as incurred.
4.3 Limitation on the Indemnification Obligation.
(a) No party required to provide indemnification under this Section 4 (the
“Indemnifying Party”) shall be liable, and shall have any indemnification obligation hereunder, for
any amounts paid in settlement by any party entitled to indemnification hereunder (the “Indemnified
Party”) of any such loss, claim, damage, liability or action if such settlement is effected without
the consent of the Indemnifying Party (which consent shall not be unreasonably withheld).
(b) The Company shall not be liable under Section 4.1 hereof for any such claim, loss, damage,
liability or expense to the extent it arises out of or is based on any untrue statement or
omission, made in reliance on and in conformity with written information furnished to the Company
by an instrument duly executed by any Stockholder, underwriter or controlling person and stated to
be specifically for use therein.
4.4 Indemnification Procedure. Each Indemnified Party” shall give notice to the Indemnifying
Party promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided the Indemnifying Party acknowledges its obligations to
indemnify the Indemnified Party with respect to the claim and provided further that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party’s expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 4 except to the extent that the
failure to give such notice is materially prejudicial to an
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Indemnifying Party’s ability to defend such action and provided further, that the Indemnifying
Party shall not assume the defense for matters as to which there is a conflict of interest or
separate and different defenses but shall bear the expense of such defense nevertheless. No
Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or litigation. If the
Indemnifying Party does not assume the defense of any claim or proceeding resulting therefrom, the
Indemnified Party may defend against such claim or proceeding as the Indemnified Part may deem
appropriate and may settle such claim or proceeding in such manner as the Indemnified Party may
deem appropriate, all without prejudice to its right to indemnification hereunder.
4.5 Contribution, Allocation, etc. If the indemnification provided for in this Section
4 is unavailable or insufficient to hold harmless an Indemnified Party under such paragraphs in
respect of any losses, claims, damages or liabilities or actions in respect thereof referred to
therein, then each Indemnifying Party shall in lieu of indemnifying such Indemnified Party
contribute to the amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities or actions in such proportion as appropriate to reflect the relative
fault of the Company, on the one hand, and the underwriters and Stockholders, on the other, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations, including the
failure to give any notice under Section 4.4. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company, on the one hand, or the underwriters or
Stockholders, on the other, and to the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and Stockholders
agree that it would not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation or by any other method of allocation which did not take account
of the equitable considerations referred to above in this paragraph. The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this paragraph, no
Stockholder shall be required to contribute any amount in excess of the lesser of (i) the
proportion that the public offering price of shares sold by such Stockholders under such
registration statement bears to the total public offering price of all securities sold thereunder,
but not to exceed the proceeds received by such Stockholder for the sale of Registrable Shares
covered by such registration statement and (ii) the amount of any damages which it would have
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission.
No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
4.6 Conflicts with Underwriting Agreement. Notwithstanding anything in this Section 4
to the contrary, to the extent that the provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the
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underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
5. Miscellaneous Provisions.
5.1 No Transfer of Registration Rights. The registration rights granted under this Agreement
may not be assigned or otherwise conveyed by Stockholders without the consent of the Company, which
consent shall not be unreasonably withheld; provided, that registration rights may be assigned by a
Stockholder in connection with a sale or other transfer to an immediate family member or to an
entity controlled by or under common control with Stockholders.
5.2 Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to conflict of laws or
any other rules or principles which may require the application of the laws of any other
jurisdiction.
5.3 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing
to Stockholders, upon any breach or default by the Company under this Agreement, shall impair any
such right, power or remedy of Stockholders nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or default thereunder
occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Stockholder or any breach or default under this Agreement,
or any waiver on the part of any Stockholder of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise afforded to
Stockholders, shall be cumulative and not alternative.
5.4 Rule 144. The Company shall use its best efforts to file the reports required to be filed
by it under the Securities Act and the Exchange Act in a timely manner and, if at any time, the
Company is not required to file such reports, it will, upon the request of any Stockholder, make
publicly available other information so long as necessary to permit sales of their securities
pursuant to Rule 144 under the Securities Act. The Company covenants that it will take such
further action as any Stockholder may reasonably request, all to the extent required from time to
time to enable Stockholders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144. Upon the request of
Stockholders, the Company shall deliver to such Stockholder a written statement as to whether it
has complied with such filing requirements. Notwithstanding the foregoing, nothing in this
Section 5.4 shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act if not otherwise registered.
5.5 Remedies. Each of the parties hereto acknowledges and agrees that any failure by a party
to perform its obligations hereunder or otherwise breach this Agreement, irreparable injury may
occur for which there is no adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure,
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a party may obtain such relief as may be required to specifically enforce the other party’s
obligations hereunder.
5.6 No Inconsistent Agreements. The Company will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent with the rights
granted to Stockholders in this Agreement or otherwise conflicts with the provisions hereof. The
Company represents and warrants that the rights granted to Stockholders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of securities of the
Company under any agreement in effect on the date hereof.
5.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements,
correspondence, arrangements and understandings relating to the subject matter hereof.
5.8 Binding Effect. All of the terms, provisions and conditions hereof shall be binding upon
and shall inure to the benefit of and be enforceable by the parties hereto, and their respective
heirs, personal representatives, successors and assigns.
5.9 Headings; Construction. The headings contained herein are for the purposes of convenience
only, and will not be deemed to constitute a part of this Agreement or to affect the meaning or
interpretation of this Agreement in any way. Unless the context clearly states otherwise, the use
of the singular or plural in this Agreement shall include the other and the use of any gender shall
include all others. The parties have participated jointly in the negotiation and drafting of this
Agreement. If any ambiguity or question of intent or interpretation arises, no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. All references herein to Sections shall refer to this Agreement
unless the context clearly otherwise requires.
5.10 Notices. All notices and other communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter’s confirmation of receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or when delivered by hand or (c) the expiration
of five (5) business days (or seven (7) business days where the addressee is not in the United
States) after the day when mailed by certified or registered mail, postage prepaid, to the
addresses set forth on the signature pages hereto, or to such other address as any party may, from
time to time, designate in a written notice given in a like manner.
5.11 Severability of Provisions. If a court in any proceeding holds any provision of this
Agreement or its application to any person or circumstance invalid, illegal or unenforceable, the
remainder of this Agreement, or the application of such provision to persons or circumstances other
than those to which it was held to be invalid, illegal or unenforceable, shall not be affected, and
shall be valid, legal and enforceable to the fullest extent permitted by law, but only if and to
the extent such enforcement would not materially and adversely frustrate the parties’ essential
objectives as expressed in this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties intend that the court add to this Agreement
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a provision as similar in terms to such invalid or unenforceable provision as may be valid and
enforceable, so as to effect the original intent of the parties to the greatest extent possible.
5.12 No Third Party Beneficiaries. This Agreement does not create, and will not be construed
as creating, any rights enforceable by any person not a party to this Agreement.
5.13 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE
PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY
JURY ARISING FROM ANY SOURCE INCLUDING, BUT NOT LIMITED TO, THE CONSTITUTION OF THE UNITED STATES
OR ANY STATE THEREIN, COMMON LAW OR ANY APPLICABLE STATUTE OR REGULATIONS. EACH PARTY HERETO
ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.
5.14 Amendment. This Agreement may be amended, modified, superseded, or canceled only by a
written instrument signed by all of the parties hereto and any of the terms, provisions and
conditions hereof may be waived, only by a written instrument signed by the waiving party.
5.15 Counterparts. This Agreement may be executed in any number of counterparts and each such
counterpart shall for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Signature Pages Follow
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In Witness Whereof, the parties have entered into this Agreement as of the date first
written above.
| THE COMPANY: ARGAN, INC. |
||||
| By: Xxxxxx Xxxxxxxxxx | ||||
| Its: President | ||||
| BUYER: ARGAN INVESTMENTS LLC |
||||
| By: Xxxxxx Xxxxxxx | ||||
| Its: Member | ||||
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