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EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of December 31, 1998 by and among Xxxxxxx Technologies, Inc., a Delaware
corporation ("Xxxxxxx"), and each of Xxxxxxx X. Day and Xxxxxxx X. Day (each, a
"Holder" and collectively, the "Holders").
R E C I T A L S
A. Xxxxxxx, XX Components, Inc., a Nevada corporation ("KDC") and the
Holders are parties to a stock purchase agreement dated as of December 31,1998
(the "Stock Purchase Agreement"); and
B. Pursuant to the Stock Purchase Agreement, each Holder shall receive
shares of the common stock, $.10 par value, of Xxxxxxx ("Xxxxxxx Common Stock")
in exchange for his shares in KDC; and
C. This Agreement is the Registration Rights Agreement referred to in
Section 13.2 of the Stock Purchase Agreement and, pursuant thereto, must be
entered into by Xxxxxxx and the Holders as a condition to the consummation of
the transactions contemplated by the Stock Purchase Agreement.
A G R E E M E N T
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 KDC 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.
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"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 Schedule A 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 hereof.
"Registrable Securities" shall mean the shares of Xxxxxxx Common
Stock (i) issued pursuant to the Stock Purchase 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, (iii) are eligible for sale to the public under Rule 144, or (iv)
are subject to the Escrow Agreement (as defined in the Stock Purchase
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.
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"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration Statement" shall have the meaning set forth
in Section 2(a) hereof.
2. Form S-3 Registration.
(a) On the Eligible Resale Date, Xxxxxxx shall file a
Registration Statement on Form S-3 providing for the sale pursuant to Rule 415
(a "Shelf Registration Statement") of the Registrable Securities by the Holders.
Xxxxxxx shall use reasonable efforts to provide 10 days' notice to each Holder
at his respective address, as listed on Schedule A hereto, of the anticipated
filing date of a Shelf Registration Statement under this Section 2(a), and such
notice shall request all information required from a Holder in order 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 a period of not fewer than 90
days.
(b) 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.
(c) 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 (i)
a pending or scheduled public offering or private placement of securities of
Xxxxxxx or any of its subsidiaries, (ii) an acquisition, merger, consolidation
or similar transaction by or of Xxxxxxx or any of its subsidiaries, (iii)
preexisting and continuing negotiations, discussions or pending proposals with
respect to any of the foregoing transactions, or (iv) 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
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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 amendment or supplement thereto,
Xxxxxxx will use reasonable efforts to furnish to the Holders and their counsel,
copies of all such documents proposed to be filed at least five days prior
thereto, and Xxxxxxx will not file within such five day period any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which any such Holder shall reasonably object; 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 or supplements to the Registration Statement or 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 proceeding
for that purpose, (iv) of Xxxxxxx'x receipt 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 occurrence 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 change 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, at the earliest
possible moment, the withdrawal of any order suspending the effectiveness of the
Registration Statement;
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(e) 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 document 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 selling Holder in connection with the
offer and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(f) 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 such 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 circumstance 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;
(g) 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;
(h) upon the occurrence of any event contemplated by Section
3(c)(v) above, prepare a post-effective amendment to the Registration Statement
or to 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;
(i) 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;
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(j) 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;
(k) 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;
(l) enter into such agreements (including underwriting
agreements in customary form containing, among other things, reasonable and
customary indemnities) and take such other actions as the Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(m) 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 3(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 amended or supplemented Prospectus
contemplated by Section 3(h) hereof, or until Xxxxxxx advises such Holder in
writing that the use of the Prospectus may be resumed. It shall be a condition
precedent to Xxxxxxx'x obligation to take any action pursuant to this Section 3
with respect to the Registrable Securities of any selling Holder that such
Holder furnish to Xxxxxxx such information regarding itself and the Registrable
Securities it holds, 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
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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 is effective, no Holder shall sell more than 25,000 shares of his
Registrable Securities during 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 Holder.
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, or (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 concurrent with the sale of Registrable Securities to the party
asserting the claim underlying such Damages.
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(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
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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 its 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
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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 Xxxxxxx 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 at such other address as such
Holder or permitted assignee shall have furnished to Xxxxxxx in writing, or (b)
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
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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 to 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 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 Stock Purchase 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 all applicable securities laws
and the restrictions contained in the Investment Letter executed by each Holder
pursuant to the Stock Purchase Agreement (the "Investment Letter").
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 Stock
Purchase 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. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXXXX TECHNOLOGIES, INC.
By:
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Name:
Title:
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Xxxxxxx X. Day
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Xxxx X. Day
REGISTRATION RIGHTS AGREEMENT
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