EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 22, 2002 by and among NuCo2 Inc., a Florida
corporation (the "Company"), and those persons (the "Purchasers") identified on,
and a party to, an executed copy of the Subscription Agreement to which this
Agreement is an Exhibit (the "Subscription Agreement").
This Agreement is made pursuant to the Subscription Agreement and
the Stock Purchase Agreement that is included as Exhibit A to the Subscription
Agreement (the "Stock Purchase Agreement"), by and between the Company and the
Purchasers, pursuant to which the Company is issuing and selling up to 1,793,000
shares of its common stock, $0.001 par value per share (the "Common Stock" or
the "Shares") to the Purchasers. The Shares are being offered and sold to the
Purchasers without registration under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon the exemption from registration
provided by Section 4(2) of the Securities Act, and the provisions of Rule 506
of Regulation D, promulgated under the Securities Act. In order to induce the
Purchasers to enter into the Stock Purchase Agreement, the Company has agreed to
provide to the Purchasers (and their direct and indirect permitted transferees,
if any) the registration rights set forth in this Agreement with respect to the
resale of the Shares. The execution and delivery of this Agreement is a
condition to the Closing under the Stock Purchase Agreement. Capitalized terms
used but not defined herein shall have the meaning provided in the Stock
Purchase Agreement.
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
SECTION 1
REGISTRATION RIGHTS
1.1. FILING OF FORM S-3 RESALE REGISTRATION STATEMENT. As soon as
practical and, within ten (10) business days after the Closing under the Stock
Purchase Agreement, the Company shall file with the Securities and Exchange
Commission (the "SEC" or the "Commission") a registration statement on Form S-3
pursuant to Rule 415 under the Securities Act, or, in the event that Form S-3 is
unavailable to the Company, a registration statement on such other SEC Form that
is available to the Company (together with any exhibits, amendments or
supplements thereto, and any documents incorporated by reference therein, the
"Registration Statement"), with respect to the resale of the Shares, and any
securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares. The securities
described in the preceding sentence are collectively referred to herein as the
"Registrable Securities"; provided, that the term "Registrable Securities" shall
not include securities subject to the Registration Statement or securities
transferred to a person other than a permitted transferee.
1.2. EFFECTIVENESS OF REGISTRATION STATEMENT. The Company shall,
subject to Section 6 hereof, use its commercially reasonable efforts to cause
the Registration Statement to become effective as soon as practicable and within
60 days, if the SEC does not review the Registration Statement, or 90 days, if
the SEC reviews the Registration Statement, after the filing thereof, and shall
use its commercially reasonable efforts to keep the Registration Statement
continuously effective from the date such Registration Statement becomes
effective until the earlier of (i) the date on which all Securities have been
resold under such Registration Statement, and (ii) the date on which all
Registrable Securities may be resold without restriction or limitation.
1.3. SUPPLEMENTS; AMENDMENTS. Subject to Section 6 hereof, the
Company shall supplement or amend the Registration Statement, (i) as required by
Form S-3, including, without limitation, the instructions applicable to Form
S-3, or by the Securities Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or the rules and regulations promulgated under the
Securities Act or the Exchange Act, respectively, and (ii) to include in the
Registration Statement any additional securities that become Registrable
Securities by operation of the definition thereof. The Company shall furnish to
the holders of the Registrable Securities, or their permitted transferees, as
appropriate (collectively, the "Holders"), to which the Registration Statement
relates copies of any such supplement or amendment sufficiently in advance (but
in no event less than five (5) business days in advance) of its use and/or
filing with the Commission to allow the Holders a meaningful opportunity to
comment thereon with respect to the information contained therein regarding the
Holders and any plan for resale of the Registrable Securities. The Holders
acknowledge that they have within five (5) business days of Closing supplied the
information regarding themselves and their plan of resale in the Registration
Statement to be filed and hereby waive any notice of the initial filing of the
Registration Statement, and that such Holders and their successors and assigns
will promptly notify the Company of any changes in such information.
SECTION 2
EXPENSES
The Company shall pay all expenses, fees and costs incurred in
connection with the preparation, filing, distribution and effectiveness of the
Registration Statement and any supplements or amendments thereto, whether or not
the Registration Statement becomes effective, and whether all, none or some of
the Registrable Securities are sold pursuant to the Registration Statement,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, fees and state
securities, or "blue sky," fees and expenses and reasonable fees and expenses of
one counsel for all the Holders, not to exceed $15,000, and the expense of any
special audits incident to or required by, or in connection with the filing and
effectiveness of the Registration Statement (but excluding the compensation of
regular employees of the Company, which shall be paid in any event by the
Company). The Holders shall pay all underwriting fees and discounts, selling
commissions, brokerage fees and stock transfer taxes applicable to the
Registrable Securities sold by such Holder and the fees and expenses of their
counsel, if any.
SECTION 3
REGISTRATION PROCEDURES
3.1. REGISTRATION. The Company will advise the Holders as to the
status of the preparation, filing and effectiveness of the Registration
Statement and, at the Company's expense, will do the following:
(a) furnish to each Holder a copy of the Registration
Statement (including all exhibits thereto) and any prospectus
forming a part thereof and any amendments and supplements thereto
(including all documents incorporated or deemed incorporated by
reference therein prior to the effectiveness of the Registration
Statement and including each preliminary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, which
documents, other than documents incorporated or deemed incorporated
by reference, will be subject to the review of the information
contained therein regarding the Holders and any plan for resale of
the Registrable Securities by the Holders and any such underwriter
for a period of at least five (5) business days, and the Company
shall not file the Registration Statement or such prospectus or any
amendment or supplement to the Registration Statement or prospectus
if any Holder shall reasonably object within three (3) business days
after the receipt thereof unless the Company shall have been advised
by its counsel that the Registration Statement or such prospectus or
amendment or supplement thereto is required under the Securities Act
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or the rules or regulations adopted thereunder in connection with
the distribution of Registrable Securities by the Holders or the
Company. A Holder shall be deemed to have reasonably objected to
such filing only if the Registration Statement, amendment,
prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission with respect to such
Holder or its plan of resale;
(b) furnish to each Holder one conformed copy of the
Registration Statement and of each amendment and supplement thereto
(in each case including all exhibits) and such number of copies of
the prospectus forming a part of the Registration Statement
(including each preliminary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents,
including, without limitation, documents incorporated or deemed to
be incorporated by reference prior to the effectiveness of such
Registration Statement, as each of the Holders or any such
underwriter, from time to time may reasonably request;
(c) to the extent practicable, promptly upon the filing
of any document that is to be incorporated by reference into the
Registration Statement or prospectus forming a part thereof
subsequent to the effectiveness thereof, and in any event no later
than five (5) business days after such document is filed with the
Commission, provide copies of such document to the Holders, if
requested, and make representatives of the Company available for
discussion of such document and other customary due diligence
matters; and provide promptly to the Holders upon request any
document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act;
(d) make available at reasonable times for inspection by
the Holders, and any attorney, accountant, financial adviser or
other representative (collectively, "Representatives") retained by
the Holders, subject to the recipient's prior written agreement to
keep such information confidential and not use or disclose it, all
financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and
employees of the Company to supply all information reasonably
requested by the Holders or their respective Representatives in
connection with the preparation, filing and effectiveness of the
Registration Statement;
(e) use its commercially reasonable efforts (i) to
register or qualify all Registrable Securities covered by the
Registration Statement under state securities, or "blue sky," laws
of such States of the United States of America where required and
where an exemption is not available and as the Holders of
Registrable Securities covered by the Registration Statement shall
reasonably request, (ii) to keep such registration or qualification
in effect for so long as the Registration Statement is required to
be effective hereunder, and (iii) to take any other action which may
be reasonably necessary or advisable to enable the Holders to
consummate the disposition of the securities to be sold by the
Holders in such jurisdictions, consistent with the plan of
distribution described in the prospectus included in the
Registration Statement, except that the Company shall not for any
such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where it is not so
qualified, or to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act or applicable rules
or regulations thereunder;
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(f) use its commercially reasonable efforts to cause all
Registrable Securities covered by the Registration Statement to be
registered or qualified with or approved by all other applicable
Governmental Authorities as may be necessary, in the opinion of
counsel to the Company and counsel to the Holders of Registrable
Securities, to enable the Holders thereof the consummate the
disposition of such Registrable Securities;
(g) subject to Section 6 hereof, promptly notify each
Holder of Registrable Securities covered by the Registration
Statement (i) upon discovery that, or upon the occurrence of any
event as a result of which, the prospectus forming a part of the
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of proceedings for that purpose, (iii)
of any request by the Commission for (A) amendments to the
Registration Statement or any document incorporated or deemed to be
incorporated by reference in the Registration Statement, or (B)
supplements to the prospectus forming a part of the Registration
Statement, or (C) additional information, or (iv) of the receipt by
the Company of any notification with respect to the suspension of
the registration, qualification or exemption from registration or
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose,
and at the request of any such Holder promptly prepare and file an
amendment to the Registration Statement or a supplement to the
prospectus as the Company may deem necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and furnish to each Holder a
reasonable number of copies of such supplement to, or amendment of,
such registration statement and prospectus, and, in the event of a
stop order, use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of any the
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;
(h) if reasonably requested by any Holder or if required
by law or SEC or other applicable rule or regulation, promptly
incorporate in the Registration Statement such appropriate
information as the Holder may reasonably request to have included
therein by filing a Form 8-K, or filing a supplement to the
prospectus, to reflect any change in the information regarding the
Holder, and make all required filings with the Commission in respect
of any offer or sale of Registrable Securities or any amendment or
supplement to the Registration Statement or related prospectus;
(i) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, but
not more than 18 months, beginning with the first full calendar
month after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 promulgated thereunder; and
(j) use its commercially reasonable efforts to cause all
Registrable Securities included in the Registration Statement to be
listed on Nasdaq and each securities exchange on which securities of
the same class are then listed, or, if not then listed on any
securities exchange or Nasdaq, to be eligible for trading in any
over-the-counter market or trading system in which securities of the
same class are then traded.
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3.2. UNDERWRITING. If Holders of at least 50% of the Registrable
Securities ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
notify the Company. The Holders whose shares are to be included in such
registration and the Company shall (together with all other stockholders
proposing to distribute their securities through such underwriting) enter into
underwriting and related agreements in customary form with the representative of
the underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. In any case, such
representative shall be of recognized standing. Such underwriting agreement will
contain such representations and warranties by the Company and such other terms
and provisions as are customary for underwriting agreements with respect to
secondary distributions, including, without limitation, indemnities and
contribution, the provision of opinions of counsel and accountants' letters and
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of the Holders. The Company shall cooperate fully with the
Holders and the underwriters in connection with any underwritten offering.
Notwithstanding any other provision of this Section 3.2, if the representative
of the underwriters advises the Holders in writing that marketing factors
require a limitation on the number of shares to be underwritten, the securities
of the Company held by other stockholders shall be excluded from such
registration to the extent so required by such limitation. If, after the
exclusion of such shares, still further reductions are required, the number of
shares included in the registration by each Holder shall be reduced on a pro
rata basis (based on the number of shares held by such Holder), by such minimum
number of shares as is necessary to comply with such request; provided, that
there shall be no reduction in the number of shares included in the registration
by any Holders until all shares of other stockholders have been excluded from
such registration. No Registrable Securities or any other securities excluded
from the underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any other stockholder who has requested
inclusion in such registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the underwriter and the Initiating Holders. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company and officers and directors of the Company may include
its or their securities for its or their own account in such registration, or
for the account of others, if the representative so agrees and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
SECTION 4
INDEMNIFICATION
4.1. INDEMNIFICATION BY THE COMPANY. The Company will indemnify:
(a) each of the Holders, as applicable,
(b) each of the Holder's officers, directors, members and
partners, and
(c) each individual, partnership, joint stock company,
corporation, trust, unincorporated organization,
government agency or political subdivision (each of the
foregoing, a "Person") controlling each of the Holders
within the meaning of SEC Rule 405 under the Securities
Act,
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with respect to the Registration Statement, against all expenses, claims,
losses, damages and liabilities (or actions, investigations or proceedings in
respect thereof) (collectively, a "Claim") arising out of or based on any actual
or alleged untrue statement of a material fact, or any omission of a material
fact required to be stated therein or necessary in order to make the statements
included therein not misleading, contained in the Registration Statement, any
prospectus or other offering document (including any related registration
statement, notification or the like) incident to the registration, qualification
or compliance, or any violation by the Company of the Securities Act or the
Exchange Act or any other laws or any rule or regulation thereunder applicable
to the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each of the Holders, each of its officers, directors, members and
partners, and each Person controlling each of the Holders, for any legal and any
other expenses reasonably incurred in connection with investigating and
defending any such Claim; provided, however, that the Company will not be liable
in any such case to the extent that any such Claim (i) arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company by the Holders or their Representatives and stated to be
specifically for use therein, or (ii) is finally judicially determined to have
resulted primarily from the gross negligence or willful misconduct of any person
or entity set forth in subsections (a) through (c) above.
4.2. INDEMNIFICATION BY THE HOLDERS. Each of the Holders will, if
Registrable Securities held by it are included in the securities as to which
such Registration Statement is being effected, indemnify the Company, each of
its directors and officers, and each Person who "controls" the Company within
the meaning of SEC Rule 405 under the Securities Act, and each other Holder,
against all Claims arising out of or based on any actual or alleged untrue
statement of a material fact, or any omission or a material fact required to be
stated therein or necessary in order to make the statement included or
incorporated therein not misleading, contained in the Registration Statement,
prospectus, or other offering document made by or on behalf of such Holder, and
will reimburse the Company and each other Holder, its respective directors,
officers, partners, members or control Persons for any legal or any other
expenses reasonably incurred in connection with investigating and defending any
such Claim, 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 the Registration Statement, prospectus, offering memorandum or other
document in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Holder and stated to be specifically for
use therein; provided, however, that the obligations of each of the Holders
hereunder shall be limited to an amount equal to the net proceeds received by
such Holder from the sale of the Registrable Securities pursuant to the
Registration Statement.
4.3. PROCEDURES. Each party entitled to indemnification under this
Agreement (each, an "Indemnified Party") shall give notice to the party required
to provide indemnification (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; provided that counsel for the Indemnifying Party, who shall conduct
the defense of such Claim, 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 (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the Indemnifying Party), 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 Agreement unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party,
in the investigation or defense of any such Claim shall, except with the consent
of each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement or
compromise which does not include an unconditional release of the Indemnifying
Party from all liability in respect to such Claim. Each Indemnified Party shall
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furnish such information regarding itself or the Claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the investigation and defense of such Claim.
4.4. CONTRIBUTION. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any Claim, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or omissions
which resulted in such Claim, as well as any other relevant equitable
considerations; provided, however, that the Company will not be liable in any
such case to the extent that any such Claim (i) arises out of or is based on any
untrue statement or omission based upon written information furnished to the
Company by the Holders or their Representatives and stated to be specifically
for use therein, or (ii) is finally judicially determined to have resulted
primarily from the gross negligence or willful misconduct of any person or
entity set forth in Section 4.1(a) through 4.1(c) above. The relative fault of
the Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue (or alleged untrue)
statement of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and provided that each Holder shall not be required to contribute, in the
aggregate, more than the net proceeds received by the Holders from the sale of
the Registrable Securities pursuant to the Registration Statement.
SECTION 5
PROVISION OF INFORMATION BY THE HOLDERS
Each of the Holders whose Registrable Securities are included in the
Registration Statement shall furnish to the Company such information regarding
such Holder as the Company may reasonably request in writing and as shall be
reasonably required or advisable in connection with any registration,
qualification or compliance referred to in this Agreement, and shall promptly
notify the Company if such information becomes incorrect or misleading, or
requires amendment or updating. Each of the Holders agrees that the plan of
distribution included in any prospectus relating to the Registrable Securities
shall be as set forth on Schedule B-1 hereto and that such Holder will not
resell any Registrable Securities pursuant to the Registration Statement in any
manner other than as provided therein or herein. The other information regarding
the Holders required for the initial filing of the Registration Statement has
been provided by each Holder on the Subscription Agreement. Each Holder
represents, warrants and covenants to the Company that the information regarding
such Holder that appears in the Subscription Agreement and/or Schedule B-2 is
accurate and complete in all material respects consistent with Commission
Regulation S-K, Items 507 and 508. The Purchaser will confirm promptly by
delivery of a signed copy of Schedule B-2, the sale of any Shares pursuant to
Rule 144 or the Registration Statement.
SECTION 6
HOLDBACK; POSTPONEMENT
Notwithstanding the other provisions of this Agreement, if (a) there
is material non-public information regarding the Company which the Company's
Board of Directors reasonably and in good faith determines not to be in the
Company's best interest to disclose and which the Company is not otherwise
required to disclose, or (b) there is a extraordinary business opportunity
(including but not limited to the acquisition or disposition of assets (other
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than in the ordinary course of business) or any merger, consolidation, tender
offer or other similar extraordinary transaction not in the ordinary course of
business) available to the Company which the Company's Board of Directors
reasonably and in good faith determines not to be in the Company's best interest
to disclose, then the Company may postpone or suspend filing or effectiveness of
a registration statement for a period not to exceed 60 days, provided that the
Company may not postpone or suspend filing or effectiveness of a registration
statement for more than 120 days in the aggregate during any 365-day period and
there shall be an aggregate of not more than two (2) suspensions during any
365-day period; provided, however that no postponement or suspension shall be
permitted for consecutive 60 day periods arising out of the same set of facts,
circumstances or transactions.
SECTION 7
RULE 144 REPORTING, ETC.
7.1. SEC REPORTING COMPLIANCE. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, through the second anniversary of this Agreement, the Company
will:
(a) make and keep "current public information" regarding
the Company available, as defined in Commission Rule 144(c) under
the Securities Act;
(b) use its commercially reasonable efforts to file with
the Commission in a timely manner all SEC Reports and other filings
and documents required of the Company under the Securities Act and
the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities,
furnish the Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements under
the Securities Act and the Exchange Act, including compliance with
SEC Rule 144(c), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company and other information in the possession of, or reasonably
obtainable by, the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
7.2. STOCK PURCHASE AGREEMENT COVENANTS. The Company will comply
with its covenants under Section 4 of the Stock Purchase Agreement, which are
incorporated herein by this reference.
SECTION 8
MISCELLANEOUS
8.1. ASSIGNMENT. The registration rights set forth herein may be
assigned, in whole or in part, to any transferee of Registrable Securities
permitted in accordance with the Stock Purchase Agreement, which transferee,
upon registration on the Company's or its transfer agent's books and records as
a holder of record of Registrable Securities, shall be considered thereafter to
be a Holder (provided that any transferee who is not an affiliate of a Purchaser
shall be a Holder only with respect to such Registrable Securities so acquired
and any stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Registrable
Securities) and shall be bound by all obligations and limitations of this
Agreement and the Stock Purchase Agreement.
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8.2. SECTION HEADINGS. The titles and headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
8.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflict of law rules thereof to the extent that the application
of the law of another jurisdiction would be required thereby.
8.4. NOTICES.
(a) All communications under this Agreement shall be in
writing and shall be delivered by facsimile, by hand, by reliable
overnight delivery service such as UPS or FedEx or by registered or
certified mail, postage prepaid:
(i) if to the Company, to the address listed
in the Stock Purchase Agreement, or at such other address as
it may have furnished in writing to the Purchasers;
(ii) if to the Purchasers, at the addresses
listed on Subscription Agreement, or at such other addresses
as may have been furnished the Company in writing.
(b) Any notice so addressed shall be deemed to be given
(i) if delivered by hand, on the date of such delivery, (ii) if sent
by reliable overnight delivery service such as UPS or FedEx, on the
first business day following the date of delivery to such service
for overnight delivery, (iii) if delivered by facsimile, on the date
of such facsimile, or (iv) if mailed by registered or certified
mail, on the third business day after the date of such mailing. In
the event that any notice is sent by facsimile transmission to the
Company, such transmission shall be followed immediately by
overnight delivery to the Company of such notice.
8.5. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties. No other person is intended to or
shall have any rights or remedies hereunder, whether as a third part beneficiary
or otherwise.
8.6. COUNTERPARTS. Persons may become parties to this Agreement be
entering into the Subscription Agreement, which may be executed in one or more
identical counterparts, each of which shall be deemed an original and all of
which shall be one and the same agreement. Any signature that is delivered by
facsimile signature page shall be valid and binding, with the same force and
effect as if an original, manually signed counterpart.
8.7. REMEDIES. Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it 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.
8.8. SEVERABILITY. In the event that any provision contained herein
is unenforceable, the remaining provisions shall continue in full force and
effect.
8.9. DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to the Holders, upon any breach or
default of the Company under this Agreement, shall impair any such right, power
or remedy, nor shall it be construed to be a waiver of any provision hereof, or
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of any similar breach or default thereafter occurring; nor shall any wavier of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind or character by a Holder of any breach
or default under this Agreement, or any waiver by a Holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in the writing, and that all remedies, either
under this Agreement, or by law or otherwise afforded to a Holder, shall be
cumulative and not alternative.
8.10. ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
8.11. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Stock
Purchase Agreement, the Subscription Agreement and the Operative Documents
constitute the entire understanding and agreement of the parties with respect to
the subject matter hereof and supersede all prior understandings, written or
otherwise, among such parties. This Agreement may be amended only in a writing
signed by the Company and the Holders of at least a majority of the then
outstanding Registrable Securities.
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