Exhibit 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into as
of this 17th day of March, 2000 by and among Xxxxxxx Xxxxxxxxx ("Xxxxxxxxx" or
"Seller") at 00 Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000 on the one hand, and Juniper
Group, Inc., a Nevada corporation having its principal place of business at 000
Xxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxx Xxxx 00000 ("Purchaser"), on the other hand.
W I T N E S S E T H:
WHEREAS, Seller owns and desires to sell, assign and convey to Purchaser
one hundred percent (100%) of the issued and outstanding shares of the capital
stock (the "CDA Shares") of Computer Design Associates, Ltd., a New York
corporation (the "Company"), and Purchaser desires to purchase and acquire such
CDA Shares from Seller on and subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the respective representations and
warranties hereinafter set forth and of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase. Subject to the terms and conditions contained herein,
Seller hereby agrees to sell, transfer, assign, convey and deliver to
Purchaser, and Purchaser hereby agrees to purchase and accept from Seller,
all of its right, title and interest in and to the CDA Shares, free and
clear of any liens, pledges, security interests, claims or encumbrances of
any kind.
1.2 The Purchase Price. The consideration payable by Purchaser for the CDA
Shares to be sold to Purchaser as provided herein shall be One Hundred
Fifty Thousand (150,000) shares of Common Stock, $.001 par value, of
Purchaser (the "JUNI Shares"). The JUNI Shares shall have the piggyback
registration rights set forth in Exhibit A annexed hereto.
1.3 Additional Consideration (a) 90 days from closing, 100,000 shares or
options as bonus compensation if 65% of the projections through the month
prior to 90 days from closing are met. Options are exercisable at $.68 per
share for five years.
(b) 180 days from closing, 100,000 shares or options as bonus compensation if
65% of the projections through the month prior to 180 days from closing are
met. Options are exercisable at $.68 per share for five years.
(c) On January 31, 2001, 100,000 shares or options (on same terms) if earnings
before Purchaser's overhead, interest, taxes and amortization of $300,000
is achieved for calendar 2000.
ARTICLE II
CLOSING; CONDITIONS TO CLOSING; DELIVERIES
2.1 Closing. The closing of this transaction (the "Closing") shall be held on
or about April 3, 2000, the Closing Date, at or about 10:00 A.M., Eastern
Standard Time, at the offices of the Purchaser, or at such other time and
place upon which the parties shall agree.
2.2 Conditions to Purchaser's Obligation. Purchaser's obligation hereunder to
purchase and pay for the CDA Shares by issuing the JUNI Shares to Seller,
is subject to the satisfaction, on or before the Closing Date, of the
following conditions, any of which may be waived, in whole or in part, by
Purchaser in its discretion, and Seller shall use its best efforts to cause
such conditions to be fulfilled:
(a) Representations and Warranties Correct; Performance of Covenants;
Satisfaction of Conditions. The representations and warranties of Seller
contained in this Agreement (including the Exhibits and Schedules hereto)
and those otherwise made in writing by or on behalf of Seller in connection
with the transactions contemplated by this Agreement shall be true,
complete and accurate both when made and on and as of the Closing Date as
though such representations and warranties were made at and as of such
date. Seller shall have duly and properly performed, complied with,
satisfied and observed each of its covenants, agreements, conditions to
closing and obligations contained in this Agreement to be performed,
complied with, satisfied and observed on or before the Closing Date.
(b) Purchase Permitted by Applicable Laws. The purchase of and payment for the
CDA Shares to be purchased by Purchaser hereunder shall not be prohibited
by any applicable law or governmental regulation and shall not subject
Purchaser to any tax, penalty, liability or other onerous condition under
or pursuant to any applicable law or governmental regulation.
(c) Proceedings; Receipt of Documents. All corporate and other proceedings
taken or required to be taken by Seller and Purchaser in connection with
the transactions contemplated hereby and all documents incident thereto
shall have been taken and shall be satisfactory in form and substance to
Purchaser and its counsel, and Purchaser shall have received all such
information and such counterpart originals or certified or other copies of
such documents as Purchaser may reasonably request.
(d) Delivery of Documents. Seller shall have delivered, or caused to be
delivered, to Purchaser the following:
( i) corporate certificate of good standing of the Company from the
jurisdiction in which the Company is incorporated;
( ii) the CDA Shares, with duly executed stock powers and all other documents
and signatures necessary or appropriate for their transfer to Purchaser
free and clear by delivery;
(iii)certified copies of the Certificate of Incorporation and By-Laws of the
Company;
(iv) the written resignations of each and every officer and director of the
Company and all documents necessary to elect or appoint Purchaser's
nominees to such positions;
(vi) all documents necessary or appropriate to change the authorized signatories
of Company' bank accounts and to otherwise take possession and full
operational control of the Company and its respective assets; and (vii) all
other consents, agreements, schedules, documents and exhibits required by
this Agreement to be delivered by Seller, or reasonably requested by
Purchaser, at or before the Closing.
(e) No Adverse Decision. There shall be no action, suit, investigation or
proceeding pending or threatened by or before any court, arbitrator or
administrative or governmental body which seeks to restrain, enjoin,
prevent the consummation of or otherwise affect the transactions
contemplated by this Agreement or questions the validity or legality of any
such transactions or seeks to recover damages or to obtain other relief in
connection with any such transactions.
(f) No Adverse Change. From the date of incorporation up to the Closing Date,
the Company shall not have suffered any adverse change (whether or not such
change is described in the Exhibits or Schedules hereto or any supplement
to the Exhibits or Schedules) in its business, affairs, prospects,
financial condition, working capital, assets, liabilities (absolute,
accrued, contingent or otherwise), reserves or operations, and Seller shall
have delivered to Purchaser a certificate signed by it and dated the
Closing Date, to such effect.
(g) Due Diligence. The Purchaser shall have completed, to its reasonable
satisfaction, its due diligence review of the Company's operations.
(h) Securities Law Compliance. All actions and steps necessary to assure
compliance with applicable Federal and state securities laws in connection
with the lawful sale of the CDA Shares pursuant to this Agreement, shall
have been duly obtained and shall be effective on and as of the Closing.
This shall be the sole responsibility of the Purchaser.
(i) Approvals and Consents. Seller and Purchaser shall have duly obtained all
authorizations, consents, rulings, approvals and licenses, or exemptions
therefrom, by or of all governmental authorities and non-governmental
administrative or regulatory agencies, having jurisdiction over the parties
hereto, which are required for the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby, at no cost or other adverse consequence to each other, and all
thereof shall be in full force and effect at the time of Closing.
(j) Web Site. The Company's web site will be in reasonably acceptable condition
to Purchaser.
2.3 Conditions to the Obligation of the Seller. The obligation of Seller to
consummate the transactions contemplated hereby are subject to the
fulfillment of the following conditions on or prior to the Closing Date,
any of which may be waived, in whole or in part, by the Seller in its sole
discretion, and Purchaser shall use its best efforts to cause such
conditions to be fulfilled:
(a) Representations and Warranties Correct; Performance. The representations
and warranties of Purchaser in this Agreement shall be true, complete and
accurate when made and on and as of the Closing Date.
(b) Purchase Permitted by Applicable Laws. The purchase of and payment for the
CDA Shares shall not be prohibited by any applicable law or governmental
regulation.
(c) Delivery of JUNI Shares. Purchaser shall have delivered the JUNI Shares, or
a copy of the Board Resolution authorizing and directing delivery to Seller
within ten (10) days after closing.
ARTICLE III
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to, and agrees with, Purchaser as
follows:
3.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of New York.
3.2 Authority. Seller has full authority to execute and to perform this
Agreement in accordance with its terms; the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby does
not and will not result in a breach, violation or default or give rise to
an event which with the giving of notice or after the passage of time, or
both, would result in a breach, violation or default of any of the terms or
provisions of the Company's respective Certificate of Incorporation,
By-Laws or of any indenture, agreement, judgment, decree or other
instrument or restriction to which the Company or Seller is a party or by
which the Company, Seller, the Shares or any of their assets may be bound
or affected; the execution and delivery of this Agreement have been and, as
of the Closing Date, the consummation of the transactions contemplated
hereby will have been, duly authorized, and no authorization or approval,
whether of the stockholders or directors of the Company or of governmental
bodies or otherwise, will be necessary in order to enable Seller to enter
into and perform same; and this Agreement constitutes a valid and binding
obligation enforceable against Seller in accordance with its terms.
3.3 Capitalization. The authorized capital stock of the Company consists of 200
shares of common stock, $ no par value, of which 100 shares are issued and
outstanding. All of the aforesaid issued and outstanding shares of the
Company are directly owned of record and beneficially by Seller, have been
duly authorized and validly issued and are fully paid and non-assessable.
3.4 Compliance With Law. The Company is not in violation of any laws,
governmental orders, rules or regulations to which the Company or
businesses are subject.
3.5 Litigation. There are no actions, suits, proceedings or investigations
(including any purportedly on behalf of the Company) pending or threatened
against or affecting the business or properties of the Company whether at
law or in equity or admiralty or before or by any governmental department,
commission, board, agency, court or instrumentality, domestic or foreign;
nor is the Company operating under, subject to, in violation of or in
default with respect to, any judgment, order, writ, injunction or degree of
any court or other governmental department, commission, board, agency or
instrumentality, domestic or foreign. No inquiries have been made directly
to the Company or Seller by any governmental agency which might form the
basis of any such action, suit, proceeding or investigation, or which might
require the Company to undertake a course of action which would involve any
expense. No filings have been made by any present or former employee of the
Company with the Equal Employment Opportunity Commission or any
governmental agency, asserting any claim based on alleged race, gender
(including, without limitation, sexual harassment), age or other type of
discrimination on the part of the Company.
3.6 Brokers. There has been no broker or finder involved in any manner in the
negotiations leading up to the execution of this Agreement or the
consummation of any transactions contemplated hereby, and Seller agrees to
indemnify Purchaser against and hold Purchaser harmless from any claim made
by any person for a broker's or finder's fee or other similar payment based
upon any agreements, arrangements or understanding made by Seller.
3.7 Transactions with Affiliates. There are no loans, leases, royalty
agreements, employment contracts or any other agreement or arrangement,
oral or written, between the Company, on the one hand, and any past or
present stockholder, officer, employee, consultant or director of the
Company or Seller (or any member of the immediate family of such
stockholder, officer, employee, consultant, director or Seller), on the
other hand.
3.8 Acquisition of Securities.
(a) Seller is acquiring the JUNI Shares for his own account for investment only
and not with a view towards the public sale or distribution thereof and not
with a view to or for sale in connection with any distribution thereof.
(b) Seller is: (i) an "accredited investor" as that term is defined in Rule 501
of the General Rules and Regulations under the Securities Act, (ii)
experienced in making investments of the kind described in this Agreement
and the related documents, (iii) able, by reason of the business and
financial experience, to protect his own interests in connection with the
transactions described in this Agreement, and the related documents, and
(iv) able to afford the entire loss of his investment in the JUNI Shares.
(c) Seller acknowledges that the JUNI Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Purchaser is
relying upon the truth and accuracy of, and Seller's compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of Seller set forth herein in order to determine the availability of such
exemptions and the eligibility of Seller to acquire the JUNI Shares.
(d) Seller has been provided with, and has read the Company's Annual Report on
Form 10KSB for fiscal year ended December 31, 1999, the Company's Proxy
dated December 10, 1999, and the Company's Quarterly Reports on Form 10 QSB
for the fiscal quarter ended September 30, 1999 (collectively, the SEC
Reports). Seller and his advisors, if any, have also been furnished with
materials relating to the business, finances and operations of Purchaser
and materials relating to the offer and sale of the JUNI Shares which have
been requested by Seller. Seller and his advisors, if any, have been
afforded the opportunity to ask questions of the Purchaser and has received
complete and satisfactory answers to any such inquiries.
(e) Seller understands that his investment in the JUNI Shares involves a high
degree of risk.
(f) Seller understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any
recommendation or endorsement of the JUNI Shares.
(g) Seller acknowledges that: (i) the JUNI Shares have not been and are not
being registered under the provisions of the Securities Act and may not be
transferred unless (A) subsequently registered thereunder or (B) Purchaser
shall have received an opinion of counsel, reasonably satisfactory in form,
scope and substance to Purchaser, to the effect that the JUNI Shares to be
sold or transferred may be sold or transferred pursuant to an exemption
from such registration; (ii) any sale of the JUNI Shares made in reliance
on Rule 144 promulgated under the Securities Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such JUNI Shares under circumstances in which the
seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the Securities Act, may require
compliance with some other exemption under the Securities Act or the rules
and regulations of the Securities and Exchange Commission thereunder; and
(iii) neither the Company nor any other person is under any obligation to
register the JUNI Shares under the Securities Act or to comply with the
terms and conditions of any exemption thereunder.
(h) Seller acknowledges and agrees that until such time as the JUNI Shares have
been registered under the Securities Act, the JUNI Shares shall bear a
restrictive legend in substantially the following form:
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Seller as follows:
4.1 Organization and Good Standing. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada.
4.2 Corporate Authority. Purchaser has full authority to execute and to perform
this Agreement in accordance with its terms; the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
does not and will not result in a breach, violation or default or give rise
to an event which, with the giving of notice or after the passage of time,
would result in a breach, violation or default of any of the terms or
provisions of Purchaser's Certificate of Incorporation, By-Laws or of any
indenture, agreement, judgment, decree or other instrument or restriction
to which Purchaser is a party or by which Purchaser may be bound or
affected; and this Agreement constitutes a valid and binding obligation
enforceable against Purchaser in accordance with its terms.
4.3 JUNI Shares. The JUNI Shares to be issued to Seller hereunder will be duly
authorized, validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof.
4.4 SEC Documents, Financial Statements. The Common Stock of Purchaser is
registered pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and listed for quotation on The
Nasdaq SmallCap Market under the symbol "JUNI". Purchaser has filed all
reports, schedules, forms, statements and other documents required to be
filed by the Purchaser with the Securities and Exchange Commission ("SEC")
pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d), in addition to one or
more registration statements and amendments thereto heretofore filed by
Purchaser with the SEC under the Securities Act of 1933, as amended (the
"Act") (all of the foregoing including filings incorporated by reference
therein being referred to herein as the "SEC Documents"). Purchaser has
delivered to the Seller true and complete copies of the SEC Documents
(except for exhibits and incorporated documents).
As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Act or the Exchange Act as the case may be
and the rules and regulations of the SEC promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of Purchaser included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of Purchaser as of the dates thereof and the results of operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
4.5 No Material Adverse Change. Since the date of the most recently filed SEC
Documents, no event has occurred or exists with respect to Purchaser or any
of its subsidiaries which would be likely to have, or has had, a material
adverse effect on Purchaser and its subsidiaries taken as a whole.
4.6 Brokers. There has been no broker or finder involved in any manner in the
negotiations leading up to the execution of this Agreement or the
consummation of any transactions contemplated hereby, and Purchaser agrees
to indemnify Seller against and hold Seller harmless from any claim made by
any person for a broker's or finder's fee or other similar payment based
upon any agreements, arrangements or understanding made by Purchaser.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE CLOSING
Between the date hereof and the Closing, and except as otherwise expressly
consented to in writing in advance or approved in writing in advance by
Purchaser:
5.1 Regular Course of Business. Seller will cause the Company to carry on its
business diligently and substantially in the same manner as heretofore
conducted, and shall not permit it to institute any new methods of
management, accounting or operation or engage in any transaction or
activity, enter into any agreement or make any commitment, except in the
usual and ordinary course of business and consistent with past practice as
limited by the more restrictive provisions of this Agreement, where
applicable, or as otherwise specifically contemplated by this Agreement and
not in violation thereof.
5.2 Organization. Seller shall preserve the corporate existence and business
organization of the Company intact. In addition, and not in limitation of
the foregoing, Seller will cause the Company to maintain and update any web
sites.
ARTICLE VI TERMINATION AND ABANDONMENT
6.1 Methods of Termination. The transactions contemplated herein may be
terminated at any time, but not later than the Closing:
(a) By mutual written agreement of Purchaser and Seller;
(b) By Purchaser or Seller, if the Closing shall not have occurred on or prior
to June 5, 2000 and the delay is beyond the reasonable control of the
parties hereto.
6.2 Procedure upon Termination. In the event of termination and abandonment
pursuant to Section 6.1 hereof, written notice thereof shall forthwith be
given to the other parties hereto and the transactions contemplated by this
Agreement shall be terminated without further action by Purchaser or
Seller.
ARTICLE VII
GENERAL PROVISIONS
7.1 Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be delivered personally, sent by telex or
facsimile transmission or sent by certified or registered mail, return
receipt requested, postage prepaid. Any such notice shall be deemed given
when so delivered personally or when sent by facsimile transmission or, if
mailed by certified or registered mail, ten (10) days after the date of
deposit in the United States mail, postage prepaid, if addressed:
(a) in the case of Seller to:
Xxxxxxx Xxxxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Facsimile #: (000) 000-0000
(b) in the case of Purchaser or JUNI to:
Juniper Group, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Facsimile #: (000) 000-0000
or to such other address or to such other person as Purchaser or Seller shall
have last designated by written notice given as herein provided.
7.2 Modification. This Agreement contains the entire agreement between the
parties hereto and there are no agreements, warranties or representations
which are not set forth herein. All prior negotiations, representations,
warranties, agreements and understandings are superseded hereby. This
Agreement may not be modified or amended except by an instrument in writing
duly signed by or on behalf of the parties hereto and dated on or
subsequent to the date hereof.
7.3 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within the State. Seller and
Purchaser hereby irrevocably consent to the jurisdiction of any New York
State or Federal court located in Nassau County, New York over any action
or proceeding arising out of any dispute between Seller and Purchaser and
irrevocably agrees, in this regard, not to commence any action or
proceeding arising out of any dispute between Seller and Purchaser in any
other jurisdiction.
7.4 Counterparts. This Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.5 Paragraph Headings. The paragraph headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect
any provision hereof.
7.6 Waiver. The waiver of one breach or default hereunder shall not constitute
the waiver of any other or subsequent breach or default.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and date first above written.
SELLER JUNIPER GROUP, INC., (PURCHASER)
By: /s/ Xxxxxxx Xxxxxxxxx By:/s/ Xxxxx X. Xxxxxxxxxxx
--------------------- ------------------------
Xxxxxxx Xxxxxxxxx
Title: President
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EXHIBIT "A"
(a) Request for Registration. At any time after the date hereof, if the
Company proposes to file a registration statement under the Securities Act
(other than a registration statement on Form S-4 or S-8 (or any similar or
successor form that may be adopted by the Commission) or a registration
statement filed in connection with an exchange offer or offering of securities
or debt solely to the Company's existing security or debt holders) with respect
to an offering of securities of the same class as the Registrable Securities by
the Company for its own account or for the account of any of its security
holders, then the Company shall give written notice of such proposed filing to
each Holder as soon as practicable (but in no event less than 20 days before the
anticipated filing date). Such notice shall offer each Holder the opportunity to
have all or any of the Registrable Securities held by such Holder included in
the registration statement proposed to be filed or, at the Company's option, in
a separate registration statement to be filed concurrently with such
registration statement (the "Piggy-back Registration"). Within ten days after
receiving such notice, each Holder may make a written request to the Company
that any or all of the Holder's Registrable Securities be included in the
Piggy-back Registration, which notice shall specify the number of shares to be
so included. Subject to Section 3(b) hereof, the Company shall include in the
Piggy-back Registration (or in a separate registration statement filed
concurrently therewith) all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within ten days
after the receipt by each Holder of the Company's notice. The Company may in its
discretion withdraw any registration statement filed pursuant to this Section
3(a) subsequent to its filing without liability to the Holders except with
respect to Registration Expenses. Any Holder shall be permitted to withdraw all
or part of such Holder's Registrable Securities requested to be included in a
Piggy-back Registration at any time prior to the effective date of such
Piggy-back Registration without any liability for any Registration Expenses.
(b) Priority on Piggy-back Registration. If any Piggy-Back Registration is
to be an underwritten offering, the Company shall use its commercially
reasonable efforts to cause the managing Underwriter or Underwriters to permit
the shares of Registrable Securities requested by the Holders of Registrable
Securities ("Selling Piggy-back Holders") to be included in the Piggy- back
Registration (on the same terms and conditions as similar securities of the
Company included therein to the extent appropriate). Notwithstanding the
foregoing, if the managing Underwriter or Underwriters of such offering advise
the Company in writing that, in their opinion, the number of Registrable
Securities and any other securities requested to be included in such offering is
sufficiently large to have Material Adverse Effect, then (i) if such Piggy-back
Registration is incident to a primary registration on behalf of the Company, the
amount of securities to be included in the Piggy-back Registration for any
persons (other than the Company and the Selling Piggy-back Holders) shall first
be reduced, and thereafter the Registrable Securities to be offered for the
account of the Selling Piggy-back Holders shall be reduced or limited, subject
to any written agreement among the Selling Piggy-back Holders, on a Pro Rata
Basis so that the total number of securities to be included in the offering
shall be the total number of securities recommended by such managing Underwriter
or Underwriters, unless any of the Selling Piggy-back Holders desires to sell a
number of Registrable Securities that is less than the total pro rata amount
that he is entitled to sell, in which event the number of Registrable Securities
not so elected to be sold shall be allocated among the other Selling Piggy-back
Holders on a Pro Rata Basis, and (ii) if such Piggy-back Registration is
incident to a secondary registration on behalf of holders of securities of the
Company (excluding pursuant to Section 2 hereof, in which priority will be
governed by Section 2(d) hereof), the Company shall include in such registration
statement (A) first, the number of securities of such person(s) on whose behalf
the registration is being made (allocated among such persons as they may so
determine), (B) second, the number of Registrable Securities requested to be
included in such registration pursuant to this Section 3 in excess of the
securities of such persons on whose behalf the registration is being made
propose to sell that, in the opinion of such managing Underwriters, can be sold
without causing a Material Adverse Effect on such offering, allocated among the
Selling Piggy-back Holders, subject to any written agreement among the Selling
Piggy- back Holders on a Pro Rata Basis as described in clause (i) above, and
(C) third, the number of securities requested to be included in such
registration by the Company or by other persons pursuant to similar piggy-back
registration rights (allocated among the Company and such persons as they may so
determine).
(c) Limitations on Piggy-back Registration. The Company shall not be
obligated to effect more than two Piggy-back Registrations under this Section.
