EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into as of
January 29, 1998 by and among Xxxxxxx Technologies, Inc., a Delaware
corporation ("Xxxxxxx"), and the shareholders of Tekna Seal, Inc., a
Minnesota corporation (the "Company"), listed on Schedules A and B attached
hereto (each, a "Holder" and collectively, the "Holders").
R E C I T A L S
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X. Xxxxxxx, the Company, Xxxxxxx Energy Products, Inc., a California
corporation ("MEP"), and certain of the Holders are parties to an Agreement
and Plan of Reorganization dated as of January 26, 1998 (the "Merger
Agreement"), pursuant to which the Company will merge with and into MEP; and
B. Pursuant to the Merger Agreement, the shareholders of the Company
have received shares of the common stock, $.10 par value, of Xxxxxxx
("Xxxxxxx Common Stock") in exchange for their securities of the Company; and
C. This Agreement is the Registration Rights Agreement referred to in
Section 12.2 of the Merger Agreement and, pursuant thereto, must be entered
into by the parties as a condition to the consummation of the transactions
contemplated by the Merger Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Eligible Resale Date" shall mean ten days following the date on which
Xxxxxxx has filed with the SEC consolidated financial statements of Xxxxxxx
including the results of operations of Xxxxxxx and the Company combined, of
at least 30 days, in accordance with Regulation S-X under the Exchange Act and
SEC releases and interpretations governing pooling-of-interests accounting
treatment in business combinations.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Form S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by Xxxxxxx with
the SEC.
"Holder" shall mean a holder of Registrable Securities. On the date
hereof, the Holders are those persons listed on Schedules A and B hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the 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.
"Register," "registered" and "registration" shall mean and refer to a
registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in Section 4.
"Registrable Securities" shall mean the shares of Xxxxxxx Common Stock
(i) issued pursuant to the Merger Agreement, and (ii) issued as a dividend or
other distribution with respect to or in exchange for or in replacement of the
shares referenced in (i) above; provided, however, that Registrable Securities
shall not include (i) any shares of Xxxxxxx Common Stock that have previously
been sold to the public, (ii) have been sold in a private transaction
(excluding the issuance of the Xxxxxxx Common Stock pursuant to the
Reorganization Agreement), (iii) are eligible for sale to the public under
Rule 144, or (iv) are subject to the Escrow (as defined in the Merger
Agreement).
"Registration Statement" shall mean any registration statement of
Xxxxxxx in compliance with the Securities Act that covers Registrable
Securities pursuant to the provisions of this Agreement, including, without
limitation, the Prospectus, all amendments and supplements to such
Registration Statement, including all post-effective amendments, all exhibits
and all material incorporated by reference in such Registration Statement.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or
any similar successor rule, as the same shall be in effect from time to time.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act, or
any similar successor rule, as the same shall be in effect from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Shareholder Representatives" shall mean Xxx Xxxx and Xxxxxxx
Xxxxxxxxxx, Xx., having received the power of attorney of those Holders party
to the Merger Agreement, and the power of attorney of all other Holders
electing to so appoint them.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
2. Form S-3 Registration.
(a) As soon as practicable following the Effective Date (as defined
in the Merger Agreement), Xxxxxxx shall file a Registration Statement on Form
S-3 providing for the sale pursuant to Rule 415 (a "Shelf Registration
Statement") by those persons who were not affiliates of the Company and who
are listed on Schedule B hereto, and/or any similar rule that may be adopted
by the SEC, of the Registrable Securities. After the Registration Statement
has become effective, Xxxxxxx shall use commercially reasonable efforts to
keep such Registration Statement continuously effective for 30 days.
(b) As soon as practicable following the Eligible Resale Date,
Xxxxxxx shall file a Shelf Registration Statement providing for the sale of
Common Stock by (i) affiliates of the Company listed on Schedule A hereto and
(ii) those persons on Schedule B holding Registrable Securities. Xxxxxxx
shall use reasonable efforts to provide 10 days' notice to all of the Holders
at their addresses listed on Schedules A and B hereto of the anticipated filing
date of a Shelf Registration Statement under this Section 2(b), and such notice
shall request all information required from a Holder to participate in the
Shelf Registration Statement so that such Holder may participate in such
registration. After the Registration Statement has become effective, Xxxxxxx
shall use commercially reasonable efforts to keep such Registration Statement
continuously effective for 60 days.
(c) On or as soon as practicable after October 1, 1998, Xxxxxxx
shall file a Shelf Registration Statement providing for the sale of Common
Stock by Holders of Registrable Securities. Xxxxxxx shall use reasonable
efforts to provide 10 days' notice to all of the Holders at their addresses
listed on Schedules A and B hereto of the anticipated filing date of a Shelf
Registration Statement under this Section 2(c), and such notice shall request
all information required from a Holder to participate in the Shelf Registration
Statement so that such Holder may participate in such registration. After the
Registration Statement has become effective, Xxxxxxx shall use commercially
reasonable efforts to keep such Registration Statement continuously effective
for 60 days.
(d) No Holder shall have the right to register securities under this
Agreement unless such Holder provides and/or confirms in writing prior to or
after the filing of the Registration Statement such information (including,
without limitation, information as to the number of Registrable Securities
that such Holder has sold pursuant to any such Registration Statement from
time to time) as Xxxxxxx requests in connection with such Registration
Statement.
(e) Notwithstanding the foregoing, for a period not to exceed 90
days in any 12-month period, Xxxxxxx shall not be obligated to prepare and
file, or be prevented from delaying or abandoning, the Registration Statement
required hereunder if Xxxxxxx, in its good faith judgment, reasonably believes
that the filing or maintenance of such Registration Statement would require
the disclosure of material non-public information regarding Xxxxxxx and,
accordingly, that the filing thereof, at the time requested, or the offering
of Xxxxxxx Common Stock pursuant thereto, would materially and adversely
affect (A) a pending or scheduled public offering or private placement of
securities of Xxxxxxx or any of its subsidiaries, (B) an acquisition, merger,
consolidation or similar transaction by or of Xxxxxxx or any of its
subsidiaries, (C) preexisting and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions, or (D)
the financial condition of Xxxxxxx in view of the disclosure of any pending or
threatened litigation, claim, assessment or governmental investigation which
might be required thereby.
In the event that Xxxxxxx, in good faith, reasonably believes that such
conditions are continuing after such 90-day period, it may, with the consent
of the Holders of a majority of the Registrable Securities subject (or to be
subject) to the Registration Statement, which consent shall not be unreasonably
withheld, extend such 90-day period for an additional 30 days. Any further
delay shall require the consent of the Holders of all such shares.
3. Registration Procedures. In connection with Xxxxxxx'x registration
obligations pursuant to Section 2 hereof, Xxxxxxx will use its diligent
efforts to effect such registration to permit the sale of the Registrable
Securities covered thereby in accordance with the intended method or methods
of disposition thereof, and pursuant thereto Xxxxxxx will:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its diligent efforts to cause
such Registration Statement to become effective; provided that, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, Xxxxxxx will use reasonable efforts to furnish to the Shareholder
Representatives and their counsel, copies of all such documents proposed to
be filed at least five days prior thereto, and Xxxxxxx will not file any such
Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which any such Holder shall reasonably object within such
five day period; provided, further, that Xxxxxxx will not name or otherwise
provide any information with respect to any Holder in any Registration
Statement or Prospectus without the express written consent of such Holder,
unless required to do so by the Securities Act and the rules and regulations
thereunder;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus
as may be necessary to comply with the provisions of the Securities Act and
the rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) promptly notify the selling Holders (i) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC for
amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (iii)
of the issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by Xxxxxxx of any notification with respect to
the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (v) of the happening of any event which makes any statement made
in the Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in
the Registration Statement, the Prospectus or any document incorporated
therein by reference in order to make the statements therein not misleading in
light of the circumstances then existing;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) furnish to each selling Holder, without charge, at least one
conformed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(f) deliver to each selling Holder, without charge, such reasonable
number of conformed copies of the Registration Statement (and any post-
effective amendment thereto) and such number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
(and any documents incorporated by reference therein) as such Holder may
reasonably request; Xxxxxxx consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders in connection
with the offer and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(g) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the selling
Holders in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such selling Holder reasonably requests,
and use its reasonable efforts to keep each such registration or qualification
effective, including through new filings, or amendments or renewals, during the
period such Registration Statement is required to be kept effective pursuant
to the terms of this Agreement; and do any and all other acts or things
necessary or advisable to enable the disposition in all such jurisdictions
reasonably requested by the Holders of the Registrable Securities covered by
such Registration Statement, provided that under no circumstances shall
Xxxxxxx be required in connection therewith or as a condition thereof to
qualify to do business or to file a general consent to service of process in
any such states or jurisdictions;
(h) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to be sold, free of any and all restrictive legends, such certificates to be in
such denominations and registered in such names as such Holders may request;
(i) upon the occurrence of any event contemplated by Section 4(c)(v)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the 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, 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 light of the circumstances under
which they were made, not misleading; (j) make generally available to the
holders of Xxxxxxx'x outstanding securities 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 90 days, if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten
offering, or, if not sold to underwriters in such an offering, (ii) beginning
with the first month of Xxxxxxx'x first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall cover
said 12 month period;
(k) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
Statement from and after a date not later than the effective date of such
Registration Statement;
(l) use its best efforts to cause all Registrable Securities covered
by each Registration Statement to be listed, subject to notice of issuance,
prior to the date of the first sale of such Registrable Securities pursuant to
such Registration Statement, on each securities exchange on which the Xxxxxxx
Common Stock is then listed, and admitted to trading on the Nasdaq National
Market, if the Xxxxxxx Common Stock is then admitted to trading on the Nasdaq
National Market;
(m) enter into such agreements (including underwriting agreements in
customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as a majority of the Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(n) cooperate with the selling Holders and the managing underwriter
or underwriters in their marketing efforts with respect to the sale of the
Registrable Securities, including participation by Xxxxxxx management in
"road show" presentations.
Each Holder agrees that, upon receipt of any notice from Xxxxxxx of the
happening of any event of the kind described in Section 4(c)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities under
the Prospectus related to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(i) hereof, or until it is advised in writing by
Xxxxxxx that the use of the Prospectus may be resumed. It shall be a
condition precedent to the obligations of Xxxxxxx to take any action pursuant
to this Section 4 with respect to the Registrable Securities of any selling
Holder that such Holder shall furnish to Xxxxxxx such information regarding
itself and the Registrable Securities held by it as shall be required by the
Securities Act to effect the registration of such Holder's Registrable
Securities.
4. Registration Expenses. All expenses incident to any registration to
be effected hereunder and incident to Xxxxxxx'x performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, National Association of
Securities Dealers, Inc., stock exchange and qualification fees, fees and
disbursements of Xxxxxxx'x counsel and of independent certified public
accountants of Xxxxxxx (including the expenses of any special audit required
by or incident to such performance), the fees of one counsel and one
accountant representing the Holders in such offering, expenses of any
underwriters that are customarily requested in similar circumstances by such
underwriters (excluding discounts, commissions or fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals
relating to the distribution of the Registrable Securities, which will be
borne by the Holders), all such expenses being herein called "Registration
Expenses," will be borne by Xxxxxxx. Xxxxxxx will also pay its internal
expenses, the expense of any annual audit and the fees and expenses of any
person retained by Xxxxxxx.
5. Holders' Covenants. Each Holder covenants and agrees:
(a) To sell all Registrable Securities only through a broker-dealer
approved by Xxxxxxx in writing; and
(b) During the time the Registration Statement filed pursuant to
Section 2(b) or 2(c) is effective, no Holder shall sell more than 10% of his
or her Registrable Securities on any one trading day, or more than 25% of his
or her Registrable Securities in any five consecutive trading days. Each
Holder understands and agrees these manner of sale requirements are entered
into for the benefit of Xxxxxxx and the other Holders.
6. Indemnification.
(a) Indemnification by Xxxxxxx. Xxxxxxx agrees to indemnify and
hold harmless each Holder of Registrable Securities, its officers, directors,
partners and employees and each person who controls such Holder (within the
meaning of Section 15 of the Securities Act) from and against any and all
losses, claims, damages and liabilities (including any investigation, legal
or other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted)
(collectively, "Damages") to which such
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state securities law or regulation, at common law or otherwise,
insofar as such Damages arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any amendment or supplement
thereto, (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and (iii)
any violation or alleged violation by Xxxxxxx of the Securities Act, the
Exchange Act or any state securities or blue sky laws in connection with the
Registration Statement, Prospectus or preliminary prospectus or any amendment
or supplement thereto, provided that Xxxxxxx will not be liable to any Holder
to the extent that such Damages arise from or are based upon any untrue
statement or omission (x) based upon written information furnished to Xxxxxxx
by any Holder expressly for the inclusion in such Registration Statement, (y)
made in any preliminary prospectus if any Holder failed to deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the
sale by such Holder to the party asserting the claim underlying such Damages
and such Prospectus would have corrected such untrue statement or omission
and (z) made in any Prospectus if such untrue statement or omission was
corrected in an amendment or supplement to such Prospectus and such Holder
failed to deliver such amendment or supplement prior to or concurrently with
the sale of Registrable Securities to the party asserting the claim
underlying such Damages.
(b) Indemnification by Holder of Registrable Securities. Each Holder
of Registrable Securities whose Registrable Securities are sold under a
Prospectus which is a part of a Registration Statement agrees to indemnify
and hold harmless Xxxxxxx, its directors and each officer who signed such
Registration Statement and each person who controls Xxxxxxx (within the
meaning of Section 15 of the Securities Act), and each other Holder of
Registrable Securities whose Registrable Securities are sold under the
Prospectus which is a part of such Registration Statement (and such Holder's
officers, directors and employees and each person who controls such Holder
within the meaning of Section 15 of the Securities Act), under the same
circumstances as the foregoing indemnity from Xxxxxxx to each Holder of
Registrable Securities to the extent that such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement of
a material fact or omission of a material fact that was made in the Prospectus,
the Registration Statement, or any amendment or supplement thereto, in reliance
upon and in conformity with information relating to such Holder furnished in
writing to Xxxxxxx by such Holder expressly for use therein, provided that in
no event shall the aggregate liability of any selling Holder of Registrable
Securities exceed the amount of the net proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. Xxxxxxx and the selling Holders shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the
same extent as customarily furnished by such persons in similar circumstances.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder will (i) give prompt 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 person
and not of the indemnifying party 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 such person or (C) in the reasonable judgment of such person and the
indemnifying party, based upon written advice of their respective 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). If such defense is not assumed by the indemnifying party, 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).
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 all claimants or plaintiffs to such indemnified party
of a release from all liability in respect to such claim or litigation. Any
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 used in this Section 6(c), the terms "indemnifying
party", "indemnified party" and other terms of similar
import are intended to include only Xxxxxxx (and its officers, directors and
control persons as set forth above) on the one hand, and the Holders (and their
officers, directors, partners, employees, attorneys and control persons as set
forth above) on the other hand, as applicable.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or provides a lesser sum
to the indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnifying party on the one hand and the indemnified party on the
other but also the relative fault of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations. Notwithstanding
the foregoing, no Holder shall be required to contribute any amount in excess
of the amount such Holder would have been required to pay to an indemnified
party if the indemnity under Section 6(b) hereof was available. 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 misrepresentation. The obligation of any
person to contribute pursuant to this Section 6(d) shall be several and not
joint.
(e) Timing of Payments. An indemnifying party shall make payments of
all amounts required to be made pursuant to the foregoing provisions of this
Section 6 to or for the account of the indemnified party from time to time
promptly upon receipt of bills or invoices relating thereto or when otherwise
due or payable.
(f) Survival. The indemnity and contribution agreements contained in
this Section 6 shall remain in full force and effect, regardless of any
investigation made by or on behalf of a participating Holder, its officers,
directors, partners, attorneys, agents or any person, if any, who controls
such Holder as aforesaid, and shall survive the transfer of such Registrable
Securities by such Holder.
7. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of
this Agreement:
(a) Xxxxxxx shall, with respect to a Registration Statement filed
pursuant to Section 2, give the Holders of such Registrable Securities so
registered, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement (other than reports and proxy statements incorporated
therein by reference and lawfully and properly filed with the SEC) and each
Prospectus included therein or filed with the SEC, and each amendment thereof
or supplement thereto; and
(b) Xxxxxxx shall give the Holders of such Registrable Securities so
registered, their underwriters, if any, and their respective counsel and
accountants such reasonable access to its books and records and such
opportunities to discuss the business of Xxxxxxx with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders or such underwriters, to
conduct a reasonable investigation within the meaning of Section 11(b)(3) of
the Securities Act.
8. Rule 144. Xxxxxxx covenants that it will use commercially reasonable
efforts to file, on a timely basis, the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as any
Holder may reasonably request (including, without limitation, compliance with
the current public information requirements of Rule 144(c) and Rule 144A), all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the conditions provided by Rule 144, or any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder,
Maxwell will deliver to such holder a written statement verifying that it has
complied with such information and requirements.
9. Specific Performance. Each Holder, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Xxxxxxx 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.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by United States first-class
mail, postage prepaid, sent by facsimile or delivered personally by hand or
nationally recognized courier addressed (a) if to a Holder, as indicated on the
list of Holders attached hereto as Schedule A or B, or at such other address as
such Holder or permitted assignee shall have furnished to Xxxxxxx in writing,
(b) if to the Shareholder Representatives, to the address set forth in the
Merger Agreement or (c) if to Xxxxxxx, at 0000 Xxx Xxxx Xxxxx, Xxx Xxxxx, XX
00000; Attention: Xxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx; Facsimile
(000) 000-0000, or such other address provided to the Holders in writing. All
such notices and other written communications shall be effective on the date of
mailing, facsimile transfer or delivery.
11. Successors and Assigns: Assignment of Rights. The rights and benefits
of a Holder hereunder may not be assigned to a transferee or assignee, without
the consent of Xxxxxxx; provided, however, that, no later than the 10th day
prior to the filing of the Registration Statement under Section 2 hereof, the
rights and benefits of a Holder hereunder may be transferred in connection with
a transfer or assignment of any Registrable Securities held by such Holder
(i) by gift to immediate family members of such Holder, or trusts or other
entities for the sole benefit thereof, or (ii) by gift to any entity in which
such Holder, his or her immediate family members, or trusts or other entities
for the sole benefit thereof beneficially own all of the voting securities;
provided, however, that in each case, the transferee executes an instrument
pursuant to which the transferee agrees to be bound by the terms and conditions
hereof as a Holder, and such other documents related to the Merger Agreement as
Xxxxxxx or its counsel may reasonably require, after which, such transferee
shall be deemed a "Holder" hereunder. Any transfer of Registrable Securities,
and rights hereunder, shall be subject to compliance with applicable securities
laws and the restrictions contained in the Investment Letter executed by each
Holder pursuant to the Merger Agreement.
12. 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.
13. Entire Agreement; Amendment; Waiver. This Agreement, the Merger
Agreement and the other agreements contemplated thereby constitute the full and
entire understanding and agreement among the parties with regard to the
subjects hereof and thereof. Without limiting the foregoing, the rights of
the Holders to registration pursuant to the terms of this Agreement shall be
subject to the limitations on resale contained in the Investment Letter (as
defined in the Merger Agreement). Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated, except by a written
instrument signed by Xxxxxxx and the holders of at least 51% of the Registrable
Securities and any such amendment, waiver, discharge or termination shall be
binding upon all the parties hereto, but in no event shall the obligation of
any party hereto be materially increased, except upon the written consent of
such party.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without giving effect to
principles of conflicts of laws thereof.
16. No Third Party Beneficiaries. The covenants and agreements set forth
herein are for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and such covenants and agreements shall not
be construed as conferring, and are not intended to confer, any rights or
benefits upon any other persons.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXX: XXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
SHAREHOLDER
REPRESENTATIVES:
/s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
/s/ Xxxxxxx Xxxxxxxxxx, Xx.
Name: Xxxxxxx Xxxxxxxxxx, Xx.
SCHEDULE A
SCHEDULE OF AFFILIATED HOLDERS
Number of Shares of Xxxxxxx
Common Stock Issued Pursuant
Holder's Name/Address/Telecopier No. to the Merger Agreement
------------------------------------ ----------------------------
Xxxxxxx X. Xxxxxxxx 23,443
Xxxxxxx X. Xxxxxxxxxx, Xx. 23,443
Xxxxx X. Xxxx 7,511
Xxxxx Xxxxxxx 7,437
Xxxxxxx X. Xxxx 23,905
Xxxxx X. Xxxxxx 28,636
SCHEDULE B
SCHEDULE OF NON-AFFILIATED HOLDERS
Number of Shares of Xxxxxxx
Common Stock Issued Pursuant
Holder's Name/Address/Telecopier No. to the Merger Agreement
------------------------------------ ----------------------------
Xxxxxx X. Xxxxxx & Xxxxx Xxx
Xxxxxx, JTWROS 1,730
Xxxx Xxxxxxxx 1,730
Xxxxx X. Xxxxxxxxx & Xxxxxxxx
X. Xxxxxxxxx, JTWROS 3,461
Xxxxxx X. Xxxxxxxxx & Xxxxxx
X. Xxxxxxxxx, JTWROS 3,461
Xxxxx Xxxxxxx or Xxxx Xxxxxxx,
Trustee or the Successor
Trustee of the Xxxxx and Xxxx
Xxxxxxx Family Trust Dated 11-10-97 1,211
Xxx Xxxxx 1,730
Chin-Shia Xxxx 865
Xxxxxxx X. Xxxxxxx 865
X. Xxxxxxx 77
Xxxxxx X. Xxxx 432
Xxxxxx X. Xxxx 432
Xxxxxxxxx X. Xxxxx & Xxxxxxx X.
Xxxxx as Trustees of the
Xxxxxxxxx X. Xxxxx Revocable Trust 865
Xxxxxxx X. Xxxxx & Xxxxxxxxx X.
Xxxxx, Trustees of the Xxxxxxx X.
Xxxxx Revocable Trust 865
Xxxxxx X. Xxxxx 1,730
Xxxx X. Xxxxxx 1,730
Xxxxxx X. Xxxxxx 865
Xxxxxx X. Hum 519
Xxxxxx X. Xxxxxx 1,509
Xxxxxx X. Xxxxxx 519
Xxxxxx X. & Xxxxxx X. Xxxxxx 865
Xxxxxxx Xxxxxxxxx 1,730
Xxxxxx & Xxxxxxx Xxxx 1,730
Xxxxxxxx X. Xxxxxxxx 519
X. XxXxxxxx 461
Xxxxxx Xxxx 1,730
Xxxx Xxxxxx & Xxxx Xxxxx Xxxxxx,
JTWROS 519
Xxxxxxxx X. Xxxxxxxxx (Etem) 432
Xxxxxx Xxxx Xxxxxx 1,730
Xxxxx Xxxxxxxxxx 1,730
Xxxx Xxxxxxx 153
Xxxxx Xxxxxxx 1,730
Yung-Yu Xxx Xxxx 1,730
