This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of December 20, 1996 between ALCOHOL SENSORS INTERNATIONAL,
LTD., a New York corporation (the "Company"), and AMERICAN INTERNATIONAL
INSURANCE COMPANY, a New York corporation (the "Securityholder").
The Securityholder is the beneficial owner of certain Registrable
Securities (as defined below) issued by the Company pursuant to the Purchase
Agreement (as defined below). The Company and the Securityholder deem it to be
in their respective best interests to set forth, among other things, the rights
of the Securityholder in connection with public offerings and sales of the
Registrable Securities.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Company and the Securityholder,
intending legally to be bound, hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" shall mean any day other than Saturday and Sunday and
any other day on which banking institutions in the State of New York are
required or authorized by law to close.
"Capital Stock" shall mean all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Common Stock" shall mean the common stock, par value $0.001 per
share, of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended (or any similar successor federal statute), and the rules and
regulations thereunder, as the same are in effect from time to time.
"Hold-Back Election" shall have the meaning set forth in Section 6(a)
hereof.
"Holder" shall mean any Person that owns Registrable Securities,
including such successors and assigns as acquire Registrable Securities,
directly or indirectly, from such Person. For purposes of this Agreement, the
Company may deem the registered holder of a Registrable Security as the Holder
thereof.
"Material Development Election" shall have the meaning set forth in
Section 6(b) hereof.
"Other Approved Holders" shall mean holders of Common Stock having
registration rights with respect to the Common Stock, other than under this
Agreement, which registration rights have been consented to in writing by the
Securityholder.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization, a
government or agency or political subdivision thereof or any other entity.
"Preferred Stock" shall mean the Company's Series A Cumulative
Non-redeemable Convertible Preferred Stock, par value $0.001 per share.
"Prospectus" shall mean the prospectus (including a preliminary
prospectus) included in any Registration Statement, as amended or supplemented
by a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement
and by all other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in such
prospectus.
"Purchase Agreement" shall mean the Convertible Preferred Stock and
Warrant Purchase Agreement dated as of the date hereof between the Company and
the Securityholder.
"Registrable Securities" shall mean (i) the Common Stock issued or
issuable upon conversion of the Preferred Stock or the exercise of the
Warrants; and (ii) any other Capital Stock or other securities issued or
issuable as a result of or in connection with any stock dividend, stock split
or reverse stock split, combination, recapitalization, reclassification, merger
or consolidation, exchange, distribution or similar transaction in respect of
the Common Stock.
"Registration Expenses" shall have the definition set forth in Section
7 hereof.
"Registration Statement" shall mean any registration statement which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"Restricted Security" shall have the meaning set forth in Section 2
hereof.
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"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 424" shall mean Rule 424 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"SEC" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended (or
any similar successor federal statute), and the rules and regulations
thereunder, as the same are in effect from time to time.
"Shelf Registration" shall mean the registration of Registrable
Securities for sale on a continuous or delayed basis pursuant to Rule 415.
"Shelf Registration Statement" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"Underwritten Offering" shall mean a registered offering in which
securities of the Company are sold to an underwriter for reoffering to the
public.
"Warrants" shall mean the Warrants of the Company exercisable for
shares of Common Stock purchased by the Securityholder from the Company
pursuant to the Purchase Agreement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities
entitled to the benefits of this Agreement are the Registrable Securities but,
with respect to any particular Registrable Security, only so long as such
security continues to be a Restricted Security. A Registrable Security that has
ceased to be a Registrable Security cannot thereafter become a Registrable
Security. As used herein, a "Restricted Security" is a Registrable Security
which has not been effectively registered under the Securities Act and
distributed to any Person in accordance with an effective Registration
Statement and which has not been distributed by a Holder to any Person pursuant
to Rule 144.
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SECTION 3. DEMAND REGISTRATION.
(a) Demand. Upon the written request of the Securityholder or a Holder
or Holders of a majority of the then outstanding Registrable Securities (on a
Common Stock equivalent basis) requesting that the Company effect the
registration under the Securities Act of Registrable Securities and specifying
the intended method or methods of disposition thereof (which may include a
continuous or delayed offering), the Company will use its best efforts to
effect, as expeditiously as possible, the registration under the Securities Act
of the Registrable Securities which the Company has been so requested to
register by the Securityholder or such Holder or Holders of Registrable
Securities; provided, however, that, except as provided below, the Company
shall not be obligated to (1) effect more than an aggregate of two (2) demand
registrations pursuant to this Section 3; or (2) effect a demand registration
unless either (I) the Registrable Securities for which the demand is made
constitute at least one-half of the then outstanding Registrable Securities (on
a Common Stock equivalent basis) or (II) the demand is made with respect to all
of the Registrable Securities then beneficially owned by the Securityholder or
the demanding Holder or Holders, provided such Registrable Securities
constitute at least 10% of the Registrable Securities initially issued by the
Company (on a Common Stock equivalent basis); and provided further that no
Holder (including the Securityholder) shall deliver a request for a demand
registration for a period of four (4) months following the last date on which a
Registration Statement filed in respect of the previous demand registration, if
any, was declared by the SEC to be effective. The number, percentage or kind of
shares in clause (2) above shall be appropriately adjusted for any stock
dividend, stock split, reverse stock split, combination, recapitalization,
reclassification, merger, consolidation, exchange, distribution or similar
transaction with respect to the shares of Common Stock. Notwithstanding the
foregoing, the Securityholder or a Holder or Holders of a majority of the then
outstanding Registrable Securities (on a Common Stock equivalent basis) shall
be entitled to unlimited additional demand registrations if such additional
demand registrations would be eligible for registration on Form S-3 (after the
Company qualifies for Form S-3, provided that in the case of any individual
such demand registration the aggregate gross proceeds from such S-3 demand
registration would exceed $500,000, if all registered shares thereunder were
sold); provided, however, that there shall be no more than two (2) such
registrations in any twelve (12) month period.
Upon receipt of any request for registration pursuant to this Section
3 from the Securityholder or any Holder or Holders of Registrable Securities,
the Company shall promptly (but in any event within 20 days) give written
notice of such request to all other Holders. The Company shall include in the
requested registration all Registrable Securities requested to be included by
such of the other Holders who shall make such request by written notice to the
Company delivered within 30 days of their receipt of the Company's notice. If
the Company shall receive a request for inclusion in the registration of the
Registrable Securities of additional Holders, it shall promptly so inform in
writing the Person or Persons who made the initial request for registration.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
the proposed public offering advises the Holder or Holders intending to
participate in such proposed public offering in writing that the total amount
or kind of securities which such Holder or Holders intends to include in such
proposed public offering is sufficiently large to materially adversely affect
the success of the proposed public offering, then the amount
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or kind of securities to be offered for the accounts of all Holders whose
securities are included in such Registration Statement shall be reduced (on a
pro rata basis in the case of more than one such Holder) to the extent
necessary to reduce the total amount or kind of securities to be included in
such proposed public offering to the amount or kind recommended by such
managing underwriter or underwriters. The Company shall not register any
securities other than Registrable Securities in any demand registration
effected pursuant to this Section 3(a), except pursuant to Section 3(c) or with
the prior written consent of the Securityholder (if it is participating in such
offering) or, if the Securityholder is not participating in such offering, the
Holders of a majority of the Registrable Securities (on a Common Stock
equivalent basis) being sold pursuant to such offering.
A Holder (including the Securityholder) or Holders requesting a
registration pursuant to this Section 3 may, at any time prior to the effective
date of the Registration Statement relating to such registration, revoke such
request by providing a written notice to the Company revoking such request. The
Company shall be required to pay all Registration Expenses with respect to the
first demand for registration to be revoked. If a Holder (including the
Securityholder) or Holders thereafter shall revoke any demand for registration,
such Holder (including the Securityholder) or Holders, at their option, shall
either pay all out-of-pocket Registration Expenses with respect to such revoked
demand or count such revoked demand as one of the demands for registration to
which Holders are entitled pursuant to this Section 3.
(b) Effectiveness of Registration Statement. The Company agrees to use
its best efforts to (i) cause the Registration Statement relating to any demand
registration pursuant to this Section 3 to become effective as expeditiously as
possible; (ii) thereafter keep such Registration Statement effective
continuously for the period specified in the next succeeding paragraph and to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of distribution thereof; and (iii) prevent the happening of
any event of the kinds described in clauses (4), (5) and (6) of Section
5(a)(ii).
A demand registration requested pursuant to this Section 3 will not be
deemed to have been effected unless the Registration Statement relating thereto
has become effective under the Securities Act and remained continuously
effective (except as otherwise permitted under this Agreement) for a period
ending on the earlier of (i) the date that is nine (9) months after the
effective date of such Registration Statement (subject to extension as provided
in the final paragraph of Section 5(a), Section 6(a) and Section 6(b)) and (ii)
the date on which all Registrable Securities covered by such Registration
Statement have been sold and the distribution contemplated thereby has been
completed; provided, however, that if, after such Registration Statement has
become effective, the offering of the Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or similar order
of the SEC or other governmental agency or court (other than by reason of any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information or affidavit furnished in
writing by a Holder to the Company specifically for inclusion therein), such
registration will be deemed not to have been effected.
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(c) Inclusion of Securities of Other Approved Holders. The Company and
any Other Approved Holder may include its securities in any demand registration
effected pursuant to this Section 3 that is not a Shelf Registration; provided,
however, that if the managing underwriter or underwriters of the proposed
public offering advises the Holder or Holders intending to participate in such
proposed public offering in writing that the total amount or kind of securities
which such Holders, the Company and such Other Approved Holders intend to
include in such proposed public offering is sufficiently large to materially
adversely affect the success of the proposed public offering requested by such
Holder or Holders, then the amount or kind of securities to be offered for the
accounts of the Other Approved Holders shall be reduced pro rata among such
Other Approved Holders to the extent necessary to reduce the total amount or
kind of securities to be included in such proposed public offering to the
amount or kind recommended by such managing underwriter or underwriters and, if
such reduction results in no securities being offered for the accounts of the
Other Approved Holders in such proposed public offering, then the amount or
kind of securities to be offered for the account of the Company shall be
reduced to the extent necessary to reduce the total amount or kind of
securities to be included in such proposed public offering to the amount or
kind recommended by such managing underwriter or underwriters.
SECTION 4. PIGGYBACK REGISTRATION. If the Company at any time proposes
to file a registration statement with respect to any class of equity
securities, whether for its own account (other than in connection with the
Registration Statement contemplated by Section 3 or a registration statement on
Form S-4 or S-8 (or any successor or substantially similar form), or the
registration of (A) an employee stock option, stock purchase or compensation
plan or of securities issued or issuable pursuant to any such plan or (B) a
dividend reinvestment plan) or for the account of an Other Approved Holder (a
"Requesting Securityholder"), then the Company shall in each case give written
notice of such proposed filing to all Holders of Registrable Securities at
least 20 days before the anticipated filing date of any such registration
statement by the Company, and such notice shall offer to all Holders the
opportunity to have any or all of the Registrable Securities held by such
Holders included in such registration statement. Each Holder of Registrable
Securities desiring to have its Registrable Securities registered under this
Section 4 shall so advise the Company in writing within 15 days after the date
of receipt of such notice (which request shall set forth the amount of
Registrable Securities for which registration is requested), and the Company
shall include in such Registration Statement all such Registrable Securities so
requested to be included therein on the same terms and conditions as the
securities being registered by the Company. Any Holder's request for such
inclusion may be withdrawn, in whole or in part, at any time prior to the
effective date of such Registration Statement. Notwithstanding the foregoing,
if the managing underwriter or underwriters of any such proposed public
offering advises the Company in writing that the total amount or kind of
securities which the Holders of Registrable Securities, the Company and the
Other Approved Holders intend to be included in such proposed public offering
is sufficiently large to materially adversely affect the success of such
proposed public offering, then the amount or kind of securities to be offered
for the accounts of Holders of Registrable Securities and the Other Approved
Holders shall be reduced pro rata to the extent necessary to reduce the total
amount or kind of securities to be included in such proposed public offering to
the amount or kind recommended by such managing underwriter or underwriters
before the securities offered by the Company or any Requesting Securityholder
are so reduced.
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SECTION 5. REGISTRATION PROCEDURES.
(a) General. In connection with the Company's registration obligations
pursuant to Sections 3 and 4 hereof, the Company will, as expeditiously as
practicable:
(i) prepare and file with the SEC a new Registration Statement or
such amendments and post-effective amendments to an existing Registration
Statement as may be necessary to keep such Registration Statement
effective for the time periods set forth in Section 3(b), provided that no
Registration Statement shall be required to remain in effect after all
Registrable Securities covered by such Registration Statement have been
sold and distributed as contemplated by such Registration Statement, and
provided, further, that as soon as practicable, but in no event later than
three (3) Business Days before filing such Registration Statement, any
related Prospectus or any amendment or supplement thereto, other than any
amendment or supplement made solely as a result of incorporation by
reference of documents filed with the SEC subsequent to the filing of such
Registration Statement, the Company shall furnish to the Holders of the
Registrable Securities covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be filed,
which documents shall be subject to the review of such Holders and
underwriters; the Company shall not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other than
any amendment or supplement made solely as a result of incorporation by
reference of documents filed with the SEC subsequent to the filing of such
Registration Statement) to which the managing underwriters of the
applicable offering, if any, or the Securityholder (if it is participating
in such offering) or the Holders of a majority of the Registrable
Securities (on a Common Stock equivalent basis) covered by such
Registration Statement shall have reasonably objected in writing within
three (3) Business Days after receipt of such documents to the effect that
such Registration Statement or amendment thereto or Prospectus or
supplement thereto does not comply in all material respects with the
requirements of the Securities Act (provided that the foregoing shall not
limit the right of any Holder whose Registrable Securities are covered by
a Registration Statement to reasonably object, within two (2) Business
Days after receipt of such documents, to any particular information that
is to be contained in such Registration Statement, amendment, Prospectus
or supplement that relates specifically to such Holder, including any
information describing the manner in which such Holder acquired such
Registrable Securities and the intended method or methods of distribution
of such Registrable Securities), and if the Company is unable to file any
such document due to the objections of such underwriters, the
Securityholder or such Holders, the Company shall use its best efforts to
cooperate with such underwriters, the Securityholder and Holders to
prepare, as soon as practicable, a document that is responsive in all
material respects to the reasonable objections of such underwriters, the
Securityholder and Holders; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424; and comply with the provisions of the Securities Act
applicable to the Company with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution
by the sellers thereof set forth in such Registration Statement,
Prospectus or supplement to the Prospectus (it being understood
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that the Company shall not be deemed to have used its best efforts to keep
a Registration Statement effective during the applicable period if any
action is taken by the Company that would result in Holders of the
Registrable Securities covered thereby not being able to sell such
Registrable Securities during that period unless such action is required
under applicable law or is contemplated under the last paragraph of
Section 5(a), Section 6(a) or Section 6(b));
(ii) notify the selling Holders of Registrable Securities and the
managing underwriters, if any, promptly (providing confirmation in
writing) (1) when a new Registration Statement, Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any new Registration Statement or post-effective
amendment, when it has become effective, (2) of any request by the SEC for
amendments or supplements to any Registration Statement or Prospectus or
for additional information, (3) of the issuance by the SEC of any comments
with respect to any filing, (4) of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose, (5) in the case of an Underwritten Offering,
if at any time the representations and warranties of the Company
contemplated by paragraph (xi) below cease to be true and correct as of
any time they are required to be true and correct, (6) of any suspension
of the qualification or registration (or exemption therefrom) of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (7) of the happening of
any event which makes any statement of a material fact made in any
Registration Statement, Prospectus or any document incorporated therein by
reference untrue or which requires the making of any changes in any
Registration Statement, Prospectus or any document incorporated therein by
reference so that it 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 statements therein (in the case of any Prospectus or
supplement, in the light of the circumstances under which they were made)
not misleading; and make every reasonable effort to obtain as soon as
possible the withdrawal of any order or other action suspending the
effectiveness of any Registration Statement or suspending the
qualification or registration (or exemption therefrom) of the Registrable
Securities for sale in any jurisdiction;
(iii) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in
connection with an Underwritten Offering, promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, the Securityholder (if it is participating in such
offering) and the Holders of a majority of the Registrable Securities (on
a Common Stock equivalent basis) being sold in such Underwritten Offering
reasonably agree should be included therein relating to the sale of the
Registrable Securities, including information with respect to the
aggregate number of shares of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the Underwritten Offering of the
Registrable Securities to be sold in such offering; and promptly make all
required filings of such Prospectus supplement or post-effective
amendment;
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(iv) promptly after the filing of any document which is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders of the Registrable
Securities covered thereby and the underwriters, if any;
(v) promptly after the filing of such documents with the SEC,
furnish to each selling Holder of Registrable Securities and each managing
underwriter, if any, without charge, at least one manually signed or
"edgarized" copy (but not to exceed five manually signed copies of any
document to all selling Holders and underwriters in the aggregate), and as
many conformed copies as may reasonably be requested, of the then
effective Registration Statement and any post-effective amendments
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
previously furnished or incorporated by reference);
(vi) deliver to each selling Holder of Registrable Securities and
the underwriters, if any, without charge, as many copies of the then
effective Prospectus (including each prospectus subject to completion) and
any amendments or supplements thereto as such Persons may reasonably
request; subject to the last paragraph of this Section 5(a), the Company
consents to the use of any such Prospectus or any amendment or supplement
thereto by the Holders and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by any such
Prospectus or any amendment or supplement thereto;
(vii) register or qualify (or obtain exemption therefrom) or
cooperate with the selling Holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption therefrom) of such Registrable
Securities for the offer and sale under the securities or blue sky laws of
such jurisdictions as any selling Holder of Registrable Securities or
underwriter, if any, reasonably requests in writing; use its best efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period during which such registration statement is
required to be kept effective pursuant to this Agreement; and do any and
all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the then effective Registration Statement; provided, however, that the
Company will not be required to qualify to do business in any jurisdiction
where it would not otherwise be required to qualify, but for this
paragraph (vii);
(viii) cooperate with the selling Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two (2)
Business Days prior to any sale of Registrable Securities to the
underwriters;
(ix) upon the occurrence of any event contemplated by clause (7)
of paragraph (ii) above, promptly prepare a supplement or post-effective
amendment to the
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Registration Statement or the 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
Securities being sold thereunder, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; if any event
described in clause (2) of paragraph (ii) above occurs, use its best
efforts to cooperate with the SEC to prepare, as soon as practicable, any
amendment or supplement to such Registration Statement or such related
Prospectus and any other additional information, or to take other action
that may have been requested by the SEC;
(x) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange (or quotation system
operated by a national securities association) on which identical
securities issued by the Company are then listed (or included) if
requested by the Securityholder (if it is participating in such offering)
or the Holders of a majority of the Registrable Securities (on a Common
Stock equivalent basis) covered by such Registration Statement or the
managing underwriters, if any, and enter into customary agreements
including, if necessary, a listing application and indemnification
agreement in customary form, and provide a transfer agent for such
Registrable Securities no later than the effective date of such
Registration Statement;
(xi) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form for the
managing underwriters with respect to issuers of similar market
capitalization and reporting and financial histories) and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of such Registrable Securities included in such
Registration Statement, in each case, in connection with an Underwritten
Offering, as the underwriters determine is reasonable and customary, and
in connection therewith, (1) make such representations and warranties to
the Holders of such Registrable Securities and each of the underwriters in
such form, substance and scope as are customarily made by issuers to
underwriters in secondary underwritten offerings; (2) obtain opinions of
counsel to the Company addressed to each selling Holder of such
Registrable Securities and to each of the underwriters and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriters and the selling Holders of
such Registrable Securities and shall cover the matters customarily
covered in opinions requested in secondary underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters); (3) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company addressed to
each selling Holder of such Registrable Securities and each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
secondary underwritten offerings; (4) the underwriting agreement shall
contain indemnification and contribution provisions and procedures no less
favorable than those set forth in Section 8 hereof with respect to all
parties to be indemnified pursuant to Section 8; and (5) the Company shall
deliver such documents and certificates as may be reasonably requested by
the selling Holders of such Registrable Securities and the managing
underwriters to evidence
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compliance with clause (1) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company in respect of the relevant offering;
(xii) provide a CUSIP number for the Registrable Securities no
later than the effective date of such registration statement;
(xiii) in the case of any nonunderwritten offering: (1) obtain
opinions of counsel to the Company at the time of effectiveness of such
Registration Statement covering such offering and updates thereof of
customary frequency, addressed to each Holder of any Registrable
Securities participating in such offering and covering matters that are no
more extensive in scope than would be customarily covered in opinions
obtained in secondary underwritten offerings by issuers with similar
market capitalization and reporting and financial histories; (2) obtain
"cold comfort" letters from the independent certified public accountants
of the Company at the time of effectiveness of such Registration Statement
and, upon the request of the Securityholder (if it is participating in
such offering) or the Holders of a majority of the Registrable Securities
(on a Common Stock equivalent basis) covered by such Registration
Statement, updates thereof of customary frequency, in each case addressed
to each Holder of Registrable Securities participating in such offering
and covering matters that are no more extensive in scope than would be
customarily covered in "cold comfort" letters and updates obtained in
secondary underwritten offerings by issuers with similar market
capitalization and reporting and financial histories; and (3) deliver a
certificate of a senior executive officer of the Company at the time of
effectiveness of such Registration Statement and, upon the request of the
Securityholder (if it is participating in such offering) or the Holders of
a majority of the Registrable Securities (on a Common Stock equivalent
basis) covered by such Registration Statement, updates thereof of
customary frequency, such certificates to cover matters no more extensive
in scope than those matters customarily covered in officer's certificates
delivered in connection with underwritten offerings by issuers with
similar market capitalization and reporting and financial histories;
(xiv) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC relating to such registration and the
distribution of the securities being offered and make generally available
to its securities holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than 60 days after the end
of any 12-month period (or 120 days, if such period is a fiscal year)
commencing at the end of any fiscal quarter in which the Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, or, if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of such Registration
Statement, which earnings statements shall cover such 12-month periods;
(xv) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. and in the
performance of any customary or required due diligence investigation;
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(xvi) make available for inspection by the Holders of the
Registrable Securities covered by such Registration Statement, any
underwriter participating in any disposition pursuant to such
registration, and any attorney, accountant or other representative
retained by such sellers or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by, and to cooperate fully with, any such
representative, underwriter, attorney or accountant in connection with
such registration;
(xvii) subject to the proviso in paragraph (vii) above, cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities; and
(xviii) use its best efforts to take all action necessary or
advisable to effect such registration in the manner contemplated by this
Agreement.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such securities as
the Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(a)(ii) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities (but,
in the case of an event described in Section 5(a)(ii)(6), in the affected
jurisdiction or jurisdictions only) pursuant to the then current Prospectus
until (1) such Holder is advised in writing by the Company that a new
Registration Statement covering the offer of Registrable Securities has become
effective under the Securities Act or (2) such Holder receives copies of a
supplemented or amended Prospectus contemplated by this Section 5(a), or until
such Holder is advised in writing by the Company that the use of the Prospectus
may be resumed. If the Company shall have given any such notice during a period
when a demand registration is in effect, the Company shall extend the period
during which such registration statement shall be maintained effective pursuant
to this Agreement by the number of days during which any such disposition of
Registrable Securities is discontinued pursuant to this paragraph. The Company
shall use its best efforts to limit the duration of any discontinuance with
respect to the disposition of Registrable Securities pursuant to this
paragraph.
(b) Additional Procedures for Shelf Registration. If the Holders
become entitled, pursuant to an event described in clause (ii) of the
definition of Registrable Securities, to receive any securities in respect of
Registrable Securities that were already included in a Shelf Registration
Statement, subsequent to the date such Shelf Registration Statement is declared
effective, and the Company is unable under the securities laws to add such
securities to the then-effective Shelf Registration Statement, the Company, as
promptly as practicable, shall file, in accordance with the procedures more
particularly set forth in Section 5(a), an additional Shelf
- 12 -
Registration Statement with respect to any such new Registrable Securities. The
Company shall use its best efforts to have any such additional Registration
Statement declared effective as promptly as practicable after such filing and
to keep such additional Shelf Registration Statement continuously effective
during the period specified in Section 3(b). A request to file an additional
Shelf Registration Statement pursuant to this paragraph shall not constitute a
demand under Section 3(a).
SECTION 6. HOLDBACK AGREEMENTS.
(a) Hold-Back Election. Subject to Section 6(c), in the case of the
registration of any underwritten primary offering initiated by the Company
(other than any registration by the Company on Form S-4 or Form S-8 (or any
successor or substantially similar form), or the registration of (A) an
employee stock option, stock purchase or compensation plan or of securities
issued or issuable pursuant to any such plan or (B) a dividend reinvestment
plan) or any underwritten secondary offering initiated at the request of an
Other Approved Holder, each Holder agrees, if and to the extent requested in
writing by the managing underwriter or underwriters administering such offering
as promptly as reasonably practicable prior to the commencement of the 10-day
period referred to below (a "Hold-Back Election"), not to effect any public
sale or distribution of securities of the Company except as part of such
underwritten registration, during the period beginning 10 days prior to the
effective date of the applicable registration statement relating to such
underwritten offering and ending on the earlier of (i) 90 days after such
effective date and (ii) the date such sale or distribution is permitted by such
managing underwriter or underwriters. In the event such managing underwriter or
underwriters shall exercise a Hold-Back Election during a period when a
Registration Statement filed pursuant to Section 3 is in effect, the time
period specified in Section 3(b) during which such Registration Statement is
required to be kept effective shall be extended by the number of days during
which the Holders are prohibited by such underwriter or underwriters from
publicly selling or distributing their securities. Notwithstanding the
foregoing provisions of this Section 6(a), no Holder shall be obligated to
refrain from making any public sale or distribution of securities of the
Company in the case of any underwritten secondary offering initiated at the
request of any Person who has not agreed in writing to expressly recognize and
give effect to the Holders' rights under this Section 6(a), and to be subject
to provisions that are at least as favorable to the Holders as the provisions
contained in this Section 6(a) are to such holder.
(b) Material Development Election. Subject to Section 6(c), the
Company shall be entitled, for a period of time not to exceed 90 consecutive
days, to postpone the filing of any Registration Statement otherwise required
to be prepared and filed by it pursuant to Section 3 and/or to request that the
Holders refrain from effecting any public sales or distributions of their
Registrable Securities if the board of directors of the Company in good faith
determines in its reasonable business judgment that such registration and/or
such public sales or distributions would interfere in any material respect with
any financing (other than an underwritten secondary offering of any securities
of the Company), acquisition, corporate reorganization or other transaction or
development involving the Company or any subsidiary of the Company that in the
reasonable good faith business judgment of such board is a transaction or
development that is or would be material to the Company (a "Material
Development Election"). The board of directors of the Company shall, as
promptly as practicable, give the Holders written notice of
- 13 -
any such Material Development Election. In the event of a determination by the
board of directors to postpone the filing of a Registration Statement required
to be filed under Section 3 hereof, the Company shall be required to file such
Registration Statement as soon as practicable after the board of directors of
the Company shall determine, in its reasonable business judgment, that the
filing of such Registration Statement and the offering thereunder shall not
interfere with the aforesaid material transaction or development, but in any
event no later than the end of such 90-day period. In addition, if the board of
directors of the Company has requested that the Holders refrain from making
public sales or distributions of their Registrable Securities, such board
shall, as promptly as practicable following its determination that the Holders
may recommence such public sales and distributions, notify such Holders in
writing of such determination (but in any event no later than the end of such
90-day period). In the event the Company shall exercise a Material Development
Election during a period when a Registration Statement filed pursuant to
Section 3 is in effect, the time period specified in Section 3(b) during which
such Registration Statement is required to be kept effective shall be extended
by the number of days during which the Holders are prohibited by the Company
from publicly selling or distributing their securities.
(c) Hold-Back Limitation. In no event shall the restrictions under
Section 6(a) or Section 6(b), pursuant to one or more Hold-Back Elections or
Material Development Elections, remain in effect for more than 90 days in the
aggregate in any calendar year.
(d) Company Hold-Back. In the case of each underwritten offering of
Registrable Securities pursuant to Section 3, including under any Shelf
Registration Statement, the Company agrees, if and to the extent requested in
writing by the managing underwriter or underwriters administering such offering
as promptly as reasonably practicable prior to the commencement of the 10-day
period referred to below, not to effect any public sale or distribution (other
than sales pursuant to the same Registration Statement, as permitted under this
Agreement, or any registration by the Company on Form S-4 or S-8 (or any
successor or substantially similar form) or the registration of (A) an employee
stock option, stock purchase or compensation plan or of securities issued or
issuable pursuant to any such plan or (B) a dividend reinvestment plan) of any
securities of the Company during the period beginning 10 days prior to the
effective date of the applicable registration statement relating to such
underwritten offering of Registrable Securities and ending on the earlier of
(i) 90 days after such effective date and (ii) the date such sale or
distribution is permitted by such managing underwriter or underwriters. Any
agreement entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed securities similar to
any issue of the Registrable Securities shall contain a provision under which
holders of such securities agree not to effect any public sale or distribution
of any such securities during the period described in the next preceding
sentence.
SECTION 7. REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications or registrations (or the obtaining of
exemptions therefrom) of the Registrable Securities), printing expenses
(including expenses of printing Prospectuses), messenger and delivery expenses,
internal expenses
- 14 -
(including all salaries and expenses of its officers and employees performing
legal or accounting duties), fees and disbursements of its counsel and its
independent certified public accountants (including the expenses of any special
audit or "comfort" letters required by or incident to such performance or
compliance), securities acts liability insurance (if the Company elects to
obtain such insurance), fees and expenses of any special experts retained by
the Company in connection with any registration hereunder, fees and expenses of
other Persons retained by the Company, fees and expenses of one counsel for the
Holders, selected by the Securityholder (if it is participating in such
offering) or, if the Securityholder is not participating in such offering, by
the Holders of a majority of the Registrable Securities (on a Common Stock
equivalent basis) being sold pursuant to such registration, incurred in
connection with each registration hereunder, and reasonable out-of-pocket
expenses incurred by the Holders (except as set forth in the proviso hereafter)
(all such expenses being referred to as "Registration Expenses"), shall be
borne by the Company, whether or not any registration statement becomes
effective (subject, however, to the provisions of Section 3(a)); provided that
Registration Expenses shall not include any underwriting discounts, commissions
or fees attributable to the sale of the Registrable Securities.
SECTION 8. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless, to the full extent permitted by law, but without duplication,
each Holder of Registrable Securities, its officers, directors, employees,
partners, principals, equity holders, managed or advised accounts, advisors,
representatives and agents, and each Person who controls such Holder or such
other Persons (within the meaning of the Securities Act) and any investment
advisor thereof or agent therefor, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
reasonable legal fees and expenses) arising out of or based upon any untrue or
alleged untrue statement of a material fact in, or any omission or alleged
omission of a material fact required to be stated in, any Registration
Statement or any Prospectus, or necessary to make the statements therein (in
the case of a Prospectus, in light of the circumstances under which they were
made) not misleading, except in each case insofar, but only insofar, as the
same arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in such Registration Statement or Prospectus, as the case may be,
made or omitted, as the case may be, in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use
therein. The Company shall also indemnify underwriters of the Registrable
Securities, selling brokers, dealer managers and similar securities industries
professionals participating in the distribution, and their officers, directors,
employees, partners, principals, equity holders, advisors, representatives and
agents, and each Person who controls such underwriters or other Persons (within
the meaning of the Securities Act), to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities and
other specified Persons. This indemnity is in addition to any liability that
the Company may otherwise have.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, each such Holder shall furnish to the Company in
writing such information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with such Registration
- 15 -
Statement or any Prospectus, and shall indemnify and hold harmless, to the full
extent permitted by law, but without duplication, the Company, its officers,
directors, shareholders, employees, advisors, representatives and agents, and
each Person who controls the Company or such other Persons (within the meaning
of the Securities Act) and any investment advisor thereof or agent therefor,
against any losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable legal fees and expenses)
arising out of or based upon any untrue or alleged untrue statement of a
material fact in, or any omission or alleged omission of a material fact
required to be stated in, the Registration Statement or any Prospectus, or
necessary to make the statements therein (in the case of a Prospectus, in light
of the circumstances under which they were made) not misleading, in each case
to the extent, but only to the extent, that the same arises out of or is based
upon an untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in such Registration
Statement or Prospectus, as the case may be, made or omitted, as the case may
be, in reliance upon and in conformity with written information furnished to
the Company by such Holder expressly for use therein. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industries professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement. Notwithstanding any other provision
hereof to the contrary, in no event shall the liability of any selling Holder
of Registrable Securities hereunder be greater in amount than the dollar amount
of the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification under this Section 8 will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party; provided,
however, that any Person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of
such indemnified Person unless (A) the indemnifying party has agreed to pay
such fees or expenses, (B) the indemnifying party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to the
indemnified party in a timely manner or (C) in the reasonable judgment of any
such Person, based upon advice of its counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims (in
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such Person). The indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld or delayed). No indemnified party
will be required to 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 of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, as well as
one local counsel in each relevant jurisdiction.
- 16 -
(d) Contribution. If for any reason the indemnification provided for
in Section 8(a) or Section 8(b) is unavailable to an indemnified party, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by the indemnified party as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party and the indemnified party, but also the relative fault of
the indemnifying party and the indemnified party in connection with the actions
that resulted in such loss, claim, damage, liability or expense, as well as any
other relevant equitable considerations, provided that no indemnifying Holder
shall be required to contribute an amount greater than the dollar amount of the
net proceeds actually received by such indemnifying Holder with respect to the
sale of the Registrable Securities giving rise to such contribution obligation.
The relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth herein,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding. The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in this paragraph. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentations.
SECTION 9. RULES 144 AND 144A. The Company shall use its best efforts
to make publicly available and available to the Holders, pursuant to Rule 144,
such information as is necessary to enable the Holders to make sales of
Registrable Securities pursuant to that Rule. The Company shall use its best
efforts to file timely with the SEC all documents and reports required of the
Company under the Exchange Act. The Company shall furnish to any Holder, upon
request, a written statement executed on behalf of the Company as to compliance
with the current public information requirements of Rule 144. In addition, the
Company will provide to any Holder of a Registrable Security, or any potential
purchaser of a Registrable Security, upon any such Person's reasonable request,
the information required by paragraph (d)(4) of Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) If any of the Registrable Securities covered by a demand
registration hereunder are to be sold in an Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Securityholder (if it is
participating in such offering) or, if such Securityholder is not so
participating in such offering, the Holders of a majority of the Registrable
Securities (on a Common Stock equivalent basis) included in such offering;
provided that such investment bankers and managers must be reasonably
satisfactory to the Company, acting in good faith.
- 17 -
(b) No Person may participate in any Underwritten Offering hereunder
unless such Person (i) agrees to sell such Person's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.
Nothing in this Section 10 shall be construed to create any additional rights
regarding the registration of Registrable Securities in any Person otherwise
than as set forth herein.
SECTION 11. NO INCONSISTENT AGREEMENTS. The Company (i) except as set
forth on Schedule 11 attached hereto, has not previously entered into any
agreement or understanding that is still in effect on the date hereof pursuant
to which it has granted registration or similar rights to any Person who holds
any of its securities and (ii) shall not enter into any agreement or
understanding (x) with respect to registration or similar rights on any of its
securities with any Person other than an Other Approved Holder or (y) which is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
SECTION 12. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this Section 12, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Securityholder (if the Securityholder then holds any Registrable Securities)
and the Holders of a majority of the Registrable Securities (on a Common Stock
equivalent basis) then outstanding. Whenever the consent or approval of Holders
of a specified number of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its Affiliates (other than
Holders of Registrable Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required number.
SECTION 13. REMEDIES. Each Holder having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically or to
recover damages or to exercise any other remedy available to it at law or in
equity. The foregoing rights and remedies shall be cumulative and the exercise
of any right or remedy provided herein shall not preclude any Person from
exercising any other right or remedy provided herein. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
SECTION 14. NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier or air-courier guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company, in accordance with the
provisions of this Section 14, which address initially is, with respect to
each Holder, c/o American International Insurance Company, attention:
Xxxxxx Xxxxxx, telecopier no. (000) 000-0000; confirm
- 18 -
no. (000) 000-0000, with a copy to American International Group, Inc., 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxxx X. Xxxxx;
telecopier no. (212) 785- 1584; confirm no. (000) 000-0000, and thereafter
at such other address as may be designated from time to time by notice
given in accordance with the provisions of this Section 14.
(b) If to the Company, initially at 00 Xxxx Xxxxx, Xxxxxxxx, Xxx
Xxxx 00000, attention: Xxxxxx X. Xxxxxx; telecopier no. (000) 000-0000;
confirm no. (000) 000-0000, and thereafter at such other address as may be
designated from time to time by notice given in accordance with the
provisions of this Section 14.
(c) All such notices and other communications shall be deemed to
have been delivered and received (i) in the case of personal delivery,
telecopier or telegram, on the date of such delivery, (ii) in the case of
air courier, on the Business Day after the date when sent and (iii) in the
case of mailing, on the third Business Day following such mailing.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto, including and without the need for an express assignment to
subsequent Holders of the Registrable Securities who cannot freely transfer
their shares in the absence of registration under the Securities Act.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 17. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. The use of the word "including" herein shall be interpreted to
mean "including, without limitation," unless the context clearly requires
another interpretation.
SECTION 18. GOVERNING LAW. This Agreement shall be deemed to be a
contract made under and shall be governed by and construed in accordance with
the internal laws of the State of New York without reference to the principles
of conflict of laws.
SECTION 19. JURISDICTION; FORUM. Each party hereto consents and
submits to the jurisdiction of any state court sitting in the County of New
York or federal court sitting in the Southern District of the State of New York
in connection with any dispute arising out of or relating to this Agreement.
Each party hereto waives any objection to the laying of venue in such courts
and any claim that any such action has been brought in an inconvenient forum.
To the extent permitted by law, any judgment in respect of a dispute arising
out of or relating to this Agreement may be enforced in any other jurisdiction
within or outside the United States by suit on the judgment, a certified copy
of such judgment being conclusive evidence of the fact and amount of such
judgment. Each party hereto agrees that personal service of process may
- 19 -
be effected by any of the means specified in Section 14, addressed to such
party. The foregoing shall not limit the rights of any party to serve process
in any other manner permitted by law.
SECTION 20. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
SECTION 21. ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter, whether written or oral.
- 20 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ALCOHOL SENSORS
INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
AMERICAN INTERNATIONAL
INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & Director
- 21 -
Schedule 11: Other Registration Rights Agreements
-------------------------------------------------
None
