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EXHIBIT 4.26
EXHIBIT E
REGISTRATION RIGHTS
1. Registration Rights. Mobility Electronics, Inc., a Delaware corporation (the
"Company"), covenants and agrees with you as follows:
1.1 Definitions. For purposes of this Exhibit E:
The term "Act" means the Securities Act of 1933, as amended.
The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.11 hereof.
The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
The term "Public Company" means a corporation which has a
class of equity securities registered pursuant to Section 12 of the
1934 Act, or which is required to file periodic reports pursuant to
Section 15(d) of the 1934 Act.
The term "register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement
or document.
The term "Registrable Securities" means (i) the shares of
Common Stock issued or issuable upon the conversion of the Series D
Stock and (ii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the shares referenced in (i) above,
excluding in all cases, however, any Registrable Securities (I) sold by
a person in a transaction in which his rights under this Section 1 are
not assigned (II) registered under the Act, the registration statement
in connection therewith has been declared effective, and such shares
have been disposed by such holder pursuant to such registration
statement; provided, however, that in either case of (i) or (ii) above,
any such securities shall cease to be Registrable Securities if the
registration rights granted hereunder are not transferred in accordance
with the provisions of Section 1.11 below.
The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common
Stock issued or issuable upon conversion of the Series D Stock.
The term "SEC" shall mean the Securities and Exchange
Commission.
The term "Series D Stock" means the Series D Preferred Stock,
par value $0.01 per share, of the Company.
All other capitalized terms used herein which are not defined
herein shall have the meaning given elsewhere in this Agreement.
1.2 Demand Registration.
(a) From and after March 1, 2001, the Holders of at least 66
2/3% of the then outstanding Registrable Securities may notify the
Company in writing that such Holders desire for the Company to cause
all or a portion of such notifying Holders' Registrable Securities to
be registered for sale to the public under the Act. Upon receipt of
such written request, the Company will promptly notify in writing all
other Holders of Registrable Securities of such request, which Holders
shall within twenty days following such notice from the Company, notify
the Company in writing whether such persons desire to have Registrable
Securities held by them included in such offering. The Company will,
promptly following the expiration of
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such twenty day period, prepare and file subject to the provisions of
this Section 1, and use its best efforts to prosecute to effectiveness,
an appropriate filing with the SEC of a registration statement covering
such Registrable Securities and the proposed sale or distribution
thereof under the Act.
(b) Notwithstanding anything in this Section 1.2 to the
contrary, the Company shall not be obligated to prepare or file any
registration statement pursuant to this Section 1.2, or to prepare or
file any amendment or supplement thereto, at any time when the Company,
in the good faith judgment of its Board of Directors, reasonably
believes that the filing thereof at the time requested, or the offering
of securities pursuant thereto, (i) would materially adversely affect a
pending or proposed public offering of the Company's securities, or an
acquisition, merger, recapitalization, consolidation, reorganization or
similar transaction, negotiations, discussions or pending proposals
with respect thereto or (ii) would materially adversely affect the
business or prospects of the Company in view of the disclosures that
may be required thereby of information about the business, assets,
liabilities or operations of the Company not theretofore disclosed;
provided, however, that the filing of a registration statement, or any
supplement or amendment thereto, by the Company may be deferred
pursuant to this Section 1.2 for no longer than 180 days (but only once
in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the
contrary: (i) the Company shall not be required to effect the
registration of the Registrable Securities pursuant to this Section 1.2
more than one time; and (ii) the Company shall not be required to
effect any such registration unless at least $5 million of Registrable
Securities are to be sold in such registration (with such amount being
determined based on the market price of the Common Stock on the date of
the initiating Holder(s) request). If any registration pursuant to this
Section 1.2 is in the form of an underwritten offering, the Company
will select and obtain the investment banker or investment bankers and
manager or managers that will administer the offering, which investment
bankers must offer terms which are reasonably competitive in the
marketplace for similar size companies and similar offerings. The
Company shall (together with all Holders proposing to distribute
Registrable Securities through such underwriting) enter into an
underwriting agreement, containing usual and customary terms, with the
managing underwriter selected for such underwriting. If any holder of
Registrable Securities disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. The Registrable Securities so
withdrawn shall also be withdrawn from registration.
(d) If any registration statement under this Section 1.2 is
not declared effective (except for the reasons specified in Section 1.9
below and except as a result of Holders withdrawing Registrable
Securities), then the holders of Registrable Securities may request an
additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall
relieve the Company of its obligations to effect any registrations
under, and pursuant to the terms of, Sections 1.3 and 1.4 hereof.
1.3 S-3 Registrations.
(a) Once the Company is eligible to effect a registration of
its securities under Form S-3 (or successor form), the Holders will
have the right to request and have effected (but only one registration
per twelve month period) registrations of Registrable Securities on
Form S-3 as long as the aggregate proposed offering price is not less
$3 million for any such registration. Upon written request of Holders
holding at least $3 million of Registrable Securities, the Company will
promptly notify in writing all other Holders of Registrable Securities
of such request, which Holders shall within twenty days following such
notice from the Company, notify the Company in writing whether such
persons desire to have Registrable Securities held by them included in
such offering. Following the expiration of such twenty day period, the
Company will use all reasonable efforts to cause the registration of
all Registrable Securities proposed to be included in the offering on
Form S-3 or such successor form to the extent so requested.
Notwithstanding the above, the Company shall not be required under this
Section 1.3 to include any of the Holders' Registrable Securities in
any offering on Form S-3 which involves an underwriting unless such
Holders accept the terms of such underwriting as agreed upon between
the Company and the underwriters selected by it.
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(b) Notwithstanding anything in this Section 1.3 to the
contrary, the Company shall not be obligated to prepare or file any
registration statement pursuant to this Section 1.3 or to prepare or
file any amendment or supplement thereto, at any time when the Company,
in the good faith judgment of its Board of Directors, reasonably
believes that the filing thereof at the time requested, or the offering
of securities pursuant thereto, (i) would materially adversely affect a
pending or proposed public offering of the Company's securities, or an
acquisition, merger, recapitalization, consolidation, reorganization or
similar transaction, negotiations, discussions or pending proposals
with respect thereto or (ii) would materially adversely affect the
business or prospects of the Company in view of the disclosures that
may be required thereby of information about the business, assets,
liabilities or operations of the Company not theretofore disclosed;
provided, however, that the filing of a registration statement, or any
supplement or amendment thereto, by the Company may be deferred
pursuant to this Section 1.3 for no longer than 180 days (but only once
in every twelve month period) after the delivery of such demand notice.
1.4 Piggyback Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
Common Stock or other securities under the Act in connection with the public
offering of such securities solely for cash (other than an initial public
offering, registration relating solely to the sale of securities to participants
in a Company stock option, stock purchase or similar employee benefit plan, a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities (including Form S-4 or any form
substitution thereof) or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered or a SEC Rule 145 transaction), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty days after mailing of such
notice by the Company, the Company shall, subject to the provisions of Section
1.8, use all reasonable efforts to cause to be registered under the Act and any
applicable state securities laws all of the Registrable Securities that each
such Holder has requested to be registered.
1.5 Obligations of the Company. Whenever under this Section 1 the
Company effects the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC on any appropriate form a
registration statement with respect to the Registrable Securities
proposed to be registered and use its best efforts to cause such
registration statement to become effective;
(b) Unless such registration is a firm commitment
underwriting, prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Act with respect to the disposition of all
Registrable Securities and other securities covered by such
registration statement for a period of 180 days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or "blue sky" laws
of such jurisdictions as the underwriter or such sellers (not to exceed
ten jurisdictions) shall reasonably request and do any and all other
acts and things as may be reasonably necessary to consummate the
disposition in such jurisdictions of the Registrable Securities covered
by such registration statement, except that the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified,
or to subject itself to taxation in respect of doing business in any
such jurisdiction, or to consent to general service of process in any
such jurisdiction.
(e) Immediately notify each seller of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus included in
such registration statement, as then
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in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing or if it is necessary, in the opinion of
counsel to the Company, to amend or supplement such prospectus to
comply with law, and at the request of any such seller prepare and
deliver to such seller a reasonable number of copies of a supplement to
or any amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing and shall otherwise comply in all
material respects with law and so that such prospectus, as amended or
supplemented, will comply with law.
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, any make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, beginning
with the first month of the first fiscal quarter after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11 (a) of the Act.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(i) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or automated trading
system on which similar securities issued by the Company are then
listed.
(j) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective
date of such registration.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.7 Expenses of Registration. All expenses incurred in connection with
registrations, filings or qualifications pursuant to this Section 1, in
connection with one demand registration, all piggyback registrations and all S-3
registrations including, without limitation, all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company (but excluding underwriter's commissions and fees and
any fees of others employed by a selling Holder) shall be borne by the Company.
1.8 Underwriting Requirements; Cut-backs.
(a) In connection with any offering involving an underwriting
of shares of the Company's capital stock, the Company shall not be
required to include any Holders' Registrable Securities in such
underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in
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such quantity as the underwriters determine in their sole discretion
will not materially jeopardize or in any way reduce the success of the
offering by the Company.
(b) The Company has previously granted "piggyback"
registration rights to certain of its security holders (the "Other
Holders"). Notwithstanding any thing in this Section 1 to the contrary,
in the event of any request for registration hereunder, the Company
shall provide each Other Holder the notice required with respect to
their registration rights and will allow such Other Holders to
participate in any such registration to the extent of such registration
rights; it being acknowledged and agreed that if the total amount of
securities, including Registrable Securities, requested by security
holders to be included in such offering exceeds the amount of
securities that the underwriters determine in their sole discretion is
compatible with the success of the offering (excluding any securities
to be offered by the Company), then the Company shall be required to
include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling
security holders (including Holders) according to the total amount of
securities entitled to be included therein owned by each selling
shareholder (including Holders) or in such other proportions as shall
mutually be agreed to by such selling shareholders (including
Holders)).
1.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act against any
losses, claims, damages, or liabilities, joint or several) to which
they may become subject under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements 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 not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the
1934 Act, any state securities law or any rule or regulation
promulgated under the 1934 Act or any state securities law; and,
subject to subsection 1.10(c) below, the Company will pay to each such
Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this subsection 1.10(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which
consent shall not be reasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other
Holder, and any agent of the Company, against any losses, claims,
damages, or liabilities joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in
connection
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with such registration; and each such Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any person intended to
be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this subsection 1.10(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement
is effected without the consent of the Holder, which consent shall not
be reasonably withheld; provided, that, in no event shall any indemnity
under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 1.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party receiving similar notice, to
assume the defense thereof with counsel reasonably satisfactory to the
parties; provided, however, that an indemnified party (together with
all other indemnified party which may be represented without conflict
by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding; otherwise, the
indemnified party shall be responsible for the fees and expenses of its
counsel. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action,
if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 1.10.
(d) Except as provided in the last sentence of subsection
1.10(c) above, if the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage,
or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability,
claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this
Section 1.
1.11 Assignment of Registration Rights. The registration rights of the
Holders under this Section 1 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities who
purchases from such Holder at least 10,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) the Company is promptly
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
document, including without limitation the provisions of Section 1.12 below; and
(c) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act.
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1.12 Lock-up Agreement. Each Holder hereby agrees that if requested by
the Company or the underwriters in any underwritten offering, such Holder shall
not, for the period of 180 days after the effective date of an underwritten
public offering of shares of Common Stock, without the prior written approval of
the Company or such underwriters (as the case may be), directly or indirectly,
sell, offer to sell, contract to sell (including without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of any
shares of Common Stock legally or beneficially owned by such Holder; provided,
however, in the event of an initial public offering of Common Stock, no request
shall be necessary, with the consent of such Holder to the above provisions in
this Section 1.12 being hereby granted and accepted, provided that if the
managing underwriter in such initial public offering requests that Xxxxxx
execute and deliver a lock-up letter, Xxxxxx agrees to do so, which lock-up
letter shall be in such managing underwriter's customary form. In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
1.13 Termination of Registration Rights. Notwithstanding anything in
this Section 1 to the contrary, no Holder shall be entitled to exercise any
right provided for in this Section 1: (i) at any time more than four (4) years
following the date after the Company becomes a Public Company or (ii) at such
time as such Holder is able to sell all of such Xxxxxx's Registrable Securities
in a single three-month period in compliance with Rule 144.
1.14 Amendments and Waivers. Any term or provision of the registration
rights stated in this Section 1 may be amended and the observance of any term of
such rights may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the holders of at least a majority of the Registrable Securities
then outstanding. Any amendment or waiver effected in accordance with this
Section 1.14 shall be binding upon each holder of any Registrable Securities
then outstanding, each future holder of any Registrable Securities, and the
Company.
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