Exhibit 4.12
SERIES E PREFERRED REGISTRATION RIGHTS AGREEMENT
This SERIES E PREFERRED REGISTRATION RIGHTS AGREEMENT, dated as of July 15,
2002 (the "Agreement"), is entered into by and among Spectra Systems
Corporation, a Delaware corporation with principal offices at 000 Xxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the "Company"), and the
Subscribers (the "Series E Holders") for shares of Series E Redeemable
Convertible Preferred Stock, par value $0.01 ("Series E Preferred"), pursuant to
certain Subscription Agreements dated as of even date herewith (each a
"Subscription Agreement", and collectively, the "Subscription Agreements") as
well as parties who subsequently become parties to this Agreement in accordance
with Section 26 hereof.
Section 1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Closing Date" means July 15, 2002.
1.2 "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act and the
Exchange Act.
1.3 "Common Stock" means the Company's Common Stock, $0.01 par value per
share, as authorized on the date of this Agreement.
1.4 "Exchange Act" means the Securities Exchange Act of 1934, or any
successor federal statute, as amended, and the rules and regulations of the
Commission thereunder.
1.5 "Initial Public Offering" means the first underwritten public offering
of Common Stock of the Company conducted on a "firm commitment" or "best
efforts" basis pursuant to an offering registered under the Securities Act with
the Commission on Form S-1 or similar long form registration statement or its
then equivalent.
1.6 "Qualified Public Offering" means a fully underwritten, firm
commitment public offering pursuant to an effective registration under the
Securities Act covering the offer and sale by the Company of Common Stock in
which the aggregate net proceeds to the Company after deducting underwriters'
discounts and commissions equals or exceeds $30,000,000 and in which the price
per share of Common Stock offered to the public equals or exceeds $5.00 (such
price to be equitably adjusted in the event of any stock dividend, stock split,
combination, recapitalization, reorganization, reclassification or other similar
event).
1.7 "Person" means an individual, corporation, partnership, joint venture,
trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
1.8 "Purchased Shares" means shares of Series E Preferred Stock purchased
pursuant to the Subscription Agreements.
1.9 "Holders" means the persons or entities listed in Schedule 1 hereto
who execute a counterpart of this Agreement.
1.10 "Registrable Shares" means (i) the shares of Common Stock issued and
issuable upon conversion of the Purchased Shares; and (ii) any shares of Common
Stock of the Company acquired by, or issuable upon exercise or conversion of any
securities of the Company acquired by, any Holder after the date hereof.
Registrable Shares shall cease to be Registrable Shares upon any sale pursuant
to a registration statement under the Securities Act or upon any sale to the
public under Rule 144, or any successor rule, promulgated by the Commission
under the Securities Act.
1.11 "Securities Act" means the Securities Act of 1933, or any successor
federal statute, as amended, and the rules and regulations of the Commission
thereunder.
SECTION 2. "PIGGY BACK" REGISTRATION. If at any time after the Company's
Initial Public Offering the Company shall determine to register under the
Securities Act (including pursuant to a demand of any stockholder of the Company
exercising registration rights) any of its Common Stock, other than on Form S-8
or Form S-4 or their then equivalent or in connection with a transaction
described under Rule 145 under the Securities Act, it shall send to each holder
of Registrable Shares written notice of such determination at least 30 days
before the anticipated filing date. If within 20 days after receipt of such
notice, such holder shall so request in writing (a "Selling Shareholder"), the
Company shall use its best efforts to include in such registration statement all
the Registrable Shares such holder requests to be registered, except that if, in
connection with any offering involving an underwriting of Common Stock to be
issued by the Company, the managing underwriter shall impose a limitation on the
number of shares of such Common Stock which may be included in any such
registration statement because, in its judgment, such limitation is necessary to
avoid jeopardizing the success of the offering by the Company, and such
limitation is imposed on a pro rata basis among the holders of Common Stock
having an incidental ("piggy back") right to include such Common Stock in the
registration statement according to the amount of such Common Stock which each
Selling Shareholder owns, then the Company shall be obligated to include in such
registration statement only such portion of the Registrable Shares which the
managing underwriter believes may be sold without having such effect; provided,
however, that such limitation shall not be imposed if any shares are to be
included in such underwriting for the account of any person other than the
Company or the requesting holders of Registrable Shares. In connection with any
offering involving an underwriting of Common Stock to be issued by the Company,
the Company shall not be required to include a Selling Shareholder's Registrable
Shares in such underwriting unless such Selling Shareholder accepts the terms of
the underwriting as agreed upon by the Company and the underwriters selected by
the Company. No incidental right under this Section 2 shall be construed to
limit any registration required under Section 3.
SECTION 3. REQUIRED REGISTRATION. If on any one occasion one or more holders of
not less than fifty-one percent (51%) of the Registrable Shares then outstanding
(including as outstanding for this purpose shares of Common Stock issuable upon
exercise or conversion of outstanding Registrable Shares) shall notify the
Company in writing that it or they intend to offer or cause to be offered
Registrable Shares for public sale, the Company will so notify all holders of
Registrable Shares. Upon written request of any holder of Registrable Shares
given within 15 days after the receipt by such holder from the Company of such
notification, the Company will use its best efforts to cause
such of the Registrable Shares as may be requested by any holder thereof
(including the holder or holders giving the initial notice of intent to offer)
to be registered under the Securities Act as expeditiously as possible, at the
expense of the Company. If the Company determines to include shares to be sold
by it in any registration requested pursuant to this Section 3, such
registration shall be deemed to be a registration under Section 2 hereof rather
than under this Section 3. In any registration pursuant to this Section 3, the
Company shall not have a right to include any Company shares in such
registration statement unless Holders of a majority of the Registrable Shares
included in such registration statement shall have given their consent.
Notwithstanding the foregoing, (a) the Company shall not be obligated to file a
registration statement pursuant to this Section 3 during the period beginning
with the date 60 days prior to the Company's estimated (in good faith) date of
filing of, and ending on a date four months following the effective date of, a
registration statement (whose preparation was in progress at the beginning of
such 60-day period) pertaining to an underwritten public offering of securities
of the Company, provided that the Company is actively employing in good faith
all reasonable efforts through such period to cause such registration statement
to become effective; and (b) if the Board of Directors of the Company reasonably
determines that immediate registration of such Registrable Shares could have a
material adverse effect upon the Company, the Company may delay commencement of
registration for up to three months after receipt of a request for registration
as referenced above. If the Company elects to delay filing of a registration
statement for such reason, the holders of a majority of the Registrable Shares
requesting to be included in the registration shall have the right to withdraw
such request, which withdrawn request shall be deemed not to have been made. Any
registration requested pursuant to this Section 3 that shall not have become
effective shall not be deemed to be a registration under this Section 3 unless
such registration has not become effective solely as a result of any act or
omission of the holders of Registrable Shares. The holders of the majority of
the Registrable Shares to be included in any registration pursuant to this
Section 3 which is underwritten shall select the managing underwriter for the
public offering subject to the approval of the Company, which approval shall not
be unreasonably withheld.
SECTION 4. REGISTRATION ON FORM S-3. In addition to the rights provided to the
holders of Registrable Shares in Sections 2 and 3 above, if a registration of
Registrable Shares under the Securities Act can be effected on Form S-3 (or any
similar form promulgated by the Commission), the Company will so notify each
holder of Registrable Shares. Thereafter, upon the request of the holders of at
least 20% of the Registrable Shares then outstanding, the Company will use its
best efforts, at its expense and as expeditiously as possible, to effect the
registration on Form S-3 of all or such portion of the Registrable Shares as any
holder or holders of Registrable Shares shall specify, and the limitations set
forth in Sections 3(b) and 3(c) above shall likewise apply to registrations
under this Section 4. In addition, each registration under this Section 4 must
include Registrable Shares having an anticipated fair market value of at least
$500,000.
SECTION 5. EFFECTIVENESS. The Company will use its best efforts to maintain the
effectiveness for up to 180 days of any registration statement pursuant to which
any of the Registrable Shares are being offered, and from time to time will
amend or supplement such registration statement and the prospectus contained
therein as and to the extent necessary to comply with the Securities Act and any
applicable state securities statute or regulation.
SECTION 6. HOLDER PARTICIPATION. It shall be a condition precedent to the
obligation of the Company to include Registrable Shares of any holder in a
registration statement filed pursuant to Sections 2, 3 or 4 hereof that such
holder furnish the Company with such information regarding the holder, the
Registrable Shares held by the holder and the intended method of disposition of
the holder's Registrable Shares being registered as the Company shall reasonably
request and as may be reasonably required in connection with the action
requested by such holder to be taken by the Company. No person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell its Registrable Shares being sold in such registration on the
basis set forth in any underwriting agreement approved by the Person or Persons
entitled hereunder to approve such agreement, and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities and other
documents reasonably required under the terms of such underwriting agreement.
SECTION 7. INDEMNIFICATION OF HOLDERS OF REGISTRABLE SHARES. In the event that
the Company registers any of the Registrable Shares under the Securities Act, to
the extent permitted by law, the Company will indemnify and hold harmless each
Holder and each underwriter of the Registrable Shares so registered (including
any broker or dealer through whom such shares may be sold) and each Person, if
any, who controls such Holder or any such underwriter within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which they or any of them
become subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse each such
holder, each such underwriter and each such controlling person, if any, for any
legal or other expenses reasonably incurred by them or any of them in connection
with investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement, in any
preliminary or amended preliminary prospectus, in the prospectus (or the
registration statement or prospectus as from time to time amended or
supplemented by the Company), in any other materials deemed to be a prospectus
under the Securities Act or in any blue sky application filed in any state or
other jurisdiction, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, unless such untrue
statement or omission was made in such registration statement, preliminary or
amended preliminary prospectus or prospectus in reliance upon and in conformity
with information furnished in writing to the Company in connection therewith by
such holder of Registrable Shares, any such underwriter or any such controlling
person expressly for use therein. Promptly after receipt by any holder of
Registrable Shares, by any underwriter or by any controlling person of notice of
the commencement of any action in respect of which indemnity may be sought
against the Company, such holder of Registrable Shares, or such underwriter or
such controlling person, as the case may be, will notify the Company in writing
of the commencement thereof, and subject to the provisions hereinafter stated,
the Company shall assume the defense of such action (including the employment of
counsel, who shall be counsel reasonably satisfactory to such holder of
Registrable Shares, such underwriter or such controlling person, as the case may
be), and the payment of expenses insofar as such
action shall relate to any alleged liability in respect of which indemnity may
be sought against the Company. Such holder of Registrable Shares, any such
underwriter and any such controlling person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall not be at the expense of the
Company unless the employment of such counsel has been specifically authorized
by the Company. The Company shall not be liable to indemnify any person for any
settlement of any such action effected without the Company's consent, which
consent shall not be unreasonably withheld. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but the omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than under
this Section 7.
SECTION 8. INDEMNIFICATION OF COMPANY. In the event that the Company registers
any of the Registrable Shares under the Securities Act, to the extent permitted
by law, each holder of the Registrable Shares so registered will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each underwriter of the Registrable Shares so
registered (including any broker or dealer through whom any of such Registrable
Shares may be sold), other holders of Registrable Shares, and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act from and against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act or under any other statute or at common law or
otherwise, and, except as hereinafter provided, will reimburse the Company and
each such director, officer, underwriter or controlling person for any legal or
other expenses reasonably incurred by them or any of them in connection with
investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement, in any
preliminary or amended preliminary prospectus, in the prospectus (or the
registration statement or prospectus as from time to time amended or
supplemented), in any other materials deemed to be a prospectus under the
Securities Act or in any blue sky application filed in any state or other
jurisdiction, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, but only insofar as any
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith by such
holder of Registrable Shares expressly for use therein; provided, however, that
such holder's obligations hereunder shall be limited in the aggregate to an
amount equal to the proceeds to such holder of the Registrable Shares sold in
such registration. Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against such holder of
Registrable Shares, the Company shall notify such holder promptly in writing of
the commencement thereof, and such holder of Registrable Shares shall, subject
to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel, who shall be counsel reasonably
satisfactory to the Company) and the payment of expenses insofar as such action
shall relate to the alleged liability in respect of which indemnity may be
sought against such holder of Registrable Shares. The Company and each such
director, officer, underwriter or controlling person shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses
of such counsel shall not be at the expense of such holder of Registrable Shares
unless employment of such counsel has been specifically authorized by such
holder of Registrable Shares. Such holder of Registrable Shares shall not be
liable to indemnify any person for any settlement of any such action effected
without such holder's consent, which consent shall not be unreasonably withheld.
The failure to notify an indemnifying party promptly of the commencement of any
such action, if prejudicial to his ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 8, but the omission so to notify the indemnifying party will not relieve
him of any liability that he may have to any indemnified party otherwise than
under this Section 8.
SECTION 9. CONTRIBUTION. If for any reason the indemnity provided in Section 7
or Section 8 is unavailable to a party who would otherwise be entitled to
indemnity thereunder (an "Indemnified Party"), or is insufficient to hold the
Indemnified Party harmless, then the party agreeing to provide indemnity
thereunder (an "Indemnifying Party") agrees to contribute to the amount paid or
payable by an Indemnified Party as a result of any losses, claims, damages,
expenses, liabilities or actions for which indemnity would otherwise be
available, in such proportion as is appropriate to reflect the relative benefits
received by the Indemnified Party and the Indemnifying Party, the relative
faults of those parties and any other relevant equitable considerations.
Notwithstanding the foregoing, the obligations of a holder of Registrable Shares
hereunder and under Section 8 shall be limited to an amount equal to the
proceeds to such holder from sale of the Registrable Shares in the registration
giving rise to the obligations.
SECTION 10. EXCHANGE ACT REGISTRATION. If the Company at any time shall list
any of its Common Stock on any national securities exchange and shall register
such Common Stock under the Exchange Act, the Company will, at its expense,
simultaneously list on such exchange all of the Registrable Shares, and will
maintain such listing. If the Company becomes subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act, the
Company will use its best efforts to timely file with the Commission such
information as the Commission may require under either of said Sections; and in
such event, the Company shall use its best efforts to take all action as may be
required as a condition to the availability of Rule 144 under the Securities Act
(or any successor exemptive rule hereinafter in effect) with respect to such
Common Stock.
SECTION 11. SPECIFIC PERFORMANCE; OTHER RIGHTS. The Company and the Holders
recognize that the rights of the parties under this Agreement are unique, and
accordingly, the Holders shall, in addition to such other remedies as may be
available to any of them at law or in equity, have the right to enforce their
rights hereunder by actions for injunctive relief and specific performance to
the extent permitted by law. Except as provided herein, this Agreement is not
intended to limit or abridge any rights of the parties which may exist apart
from this Agreement.
SECTION 12. FURTHER OBLIGATIONS OF THE COMPANY. Whenever under the preceding
Sections of this Agreement, the Company is required hereunder to register
Registrable Shares, it shall also do the following:
(a) Furnish to each Selling Shareholder such copies of each preliminary
and final prospectus and such other documents as said holder may reasonably
request to facilitate the public offering of its Registrable Shares;
(b) Use its best efforts to register or qualify the Registrable Shares
covered by said registration statement under the applicable securities or "blue
sky" laws of such jurisdictions as shall be reasonably appropriate to effect
distribution;
(c) Furnish to each Selling Shareholder a signed counterpart of: (i) an
opinion of counsel for the Company dated the effective date of the registration
statement and addressed to the Selling Shareholders; and (ii) "comfort" letters
addressed to the Selling Shareholders and signed by the Company's independent
public accountants who have examined and reported on the Company's financial
statements included in the registration statement; in each case covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and (in the case of the accountants' "comfort"
letters) with respect to events subsequent to the date of the financial
statements, as are customarily covered in opinions of issuer's counsel and in
accountants' "comfort" letters delivered to the underwriters in underwritten
public offerings of securities, to the extent that the Company is required to
deliver or cause the delivery of such opinion or "comfort" letters to the
underwriters in an underwritten public offering of securities;
(d) Permit each Selling Shareholder or his counsel or other
representatives to inspect and copy such corporate documents and records as may
reasonably be requested by them;
(e) Furnish to each Selling Shareholder a copy of all documents filed and
all correspondence from or to the Commission in connection with any such
offering; and
(f) Obtain all necessary approvals from the National Association of
Securities Dealers, Inc.
SECTION 13. EXPENSES. In the case of a registration under Section 2, 3 or 4, the
Company shall bear all costs and expenses of each such registration, including,
but not limited to, printing, legal and accounting expenses, Commission filing
fees and "blue sky" fees and expenses; provided, however, that the Company shall
have no obligation to pay or otherwise bear (i) any portion of the fees or
disbursements of more than one counsel for the holders of Registrable Shares in
connection with the registration and sale of their Registrable Shares or (ii)
any portion of the underwriters' commissions or discounts attributable to the
Registrable Shares being offered and sold by the holders of Registrable Shares.
SECTION 14. LOCKUP AGREEMENT. In consideration of the Company's execution of
this Agreement, each holder of Registrable Shares severally and not jointly
agrees that, in connection with the Company's Initial Public Offering and, upon
request of the managing underwriters thereof, such holder will not sell, make
any short sale of, loan, grant any option for the purpose of, or otherwise
dispose of any Registrable Shares (other than those included in the
registration) without the prior written consent of the managing underwriters,
for such period of time (not to exceed 180 days) from the effective date of the
registration as the underwriters may specify.
SECTION 15. UNDERWRITING AGREEMENT. In the event that Registrable Shares are
sold in an underwritten offering pursuant to Section 3 or 4, the Company agrees
to enter into an underwriting agreement containing customary representations and
warranties with
respect to the business and operations of an issuer of securities being
registered and customary covenants and agreements to be observed and performed
by such issuer, including without limitation customary provisions with respect
to indemnification by the Company of the underwriters of such offering.
SECTION 16. RULE 144 REQUIREMENTS. The Company shall:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after 90 days following the effective date of the first registration under
the Securities Act filed by the Company for an offering of its securities to the
general public, and for so long as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time from and after 90 days following the effective date of the
first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as such holder may reasonably request
to avail itself of any rule or regulation of the Commission allowing it to sell
any such securities without registration.
SECTION 17. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 18. AMENDMENTS, WAIVERS AND CONSENTS. Except as hereinafter provided,
changes in or additions to this Agreement may be made, and compliance with any
covenant or provision set forth herein may be omitted or waived, only with the
written consent of the Company and the holder or holders of not less than 66
2/3% of the Registrable Shares (calculated on an as-if converted basis). Copies
of such written consents shall be delivered to any Holder who did not execute
such consent. No consents shall be effective to reduce the percentage of
Registrable Shares the consent of the Holders of which is required under this
Section, and no amendment or change may be made to the terms of this Agreement
that imposes additional obligations or restrictions on a party hereto, without
its written consent. Any waiver or consent may be given subject to satisfaction
of conditions stated therein, and any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 19. ADDRESSES FOR NOTICES. Any notice or demand or other communication
which, by any provision of this Agreement or any agreement, document or
instrument
executed pursuant hereto, except as otherwise provided therein, is required or
provided to be given shall be deemed to have been sufficiently given or served
for all purposes if facsimile transmitted or personally delivered, or if sent by
certified or registered mail, return receipt requested, postage and charges
prepaid, or by an overnight delivery service, charges prepaid, at the addresses
set forth in Schedule 1 or at such other address as to which any party hereto
may inform the other parties in writing in compliance with the terms of this
Section; and if to the Company, to the Chief Executive Officer at the address
first set forth above with a copy to Xxxxxxxxxxx & Xxxxxxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 Attn: Xxxxxxx X. Xxxxxx, Esq. All such
notices and other communications shall be effective when personally delivered
or, when mailed, four days after deposit in the mails, or one day after delivery
to an overnight courier, addressed as aforesaid, unless otherwise provided
herein.
SECTION 20. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Company and the Holders and their respective
heirs, successors and assigns.
SECTION 21. PRIOR AGREEMENTS. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements, oral
or written, concerning the subject matter hereof.
SECTION 22. SEVERABILITY. The provisions of this Agreement are severable and,
in the event that any court of competent jurisdiction shall determine that any
one or more of the provisions of this Agreement, or any portion thereof, is
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid or illegal or unenforceable
provision, or part of a provision, had never been contained herein, and the
remaining provisions shall be valid, legal and enforceable to the maximum extent
possible.
SECTION 23. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware, and without
giving effect to choice of laws provisions.
SECTION 24. HEADING. Article, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
SECTION 26. ADDITIONAL PARTIES. The Company may issue additional shares of
Series E Preferred to persons or entities not initially parties to this
Agreement. Each Additional Series E Holder shall execute a counterpart of this
Agreement and upon such execution, this Agreement, including Schedule 1 hereto
which shall be modified accordingly and distributed to each Holder hereunder,
shall be deemed to have been amended to add such additional Series E Holder as a
party hereto with all rights and obligations of the other Holders hereunder.
SECTION 27. FURTHER ASSURANCES. From and after the date of this Agreement,
upon the request of any Investor or the Company, the Company and the Investors
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
