EXHIBIT 4.1
XXXXX CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as
of February 12, 2002 (the "Effective Date"), by and between Xxxxx Corporation,
a Delaware corporation (the "Company"), and AT&T Wireless Services, Inc., a
Delaware corporation (the "Shareholder").
RECITALS
A. The Company and Shareholder are parties to an Asset Purchase Agreement
dated the date hereof (together with the exhibits and schedules thereto, the
"Asset Purchase Agreement"), pursuant to which Shareholder shall sell or
license certain tangible and intangible assets relating to the Business (as
defined in the Asset Purchase Agreement) to the Company and the Company shall,
among other things, issue 8,200,000 shares of its Common Stock (the "Shares")
to Shareholder.
B. The entry into this Agreement is a condition of the Asset Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" means any person directly or indirectly controlling,
controlled by, or under common control with, Shareholder. For the purposes of
this definition, "control" when used with respect to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Affiliated Holder" means a Holder that has, or whose Affiliate has, a
representative on the Company's Board of Directors, and such Holder's
Affiliates. A Holder and such Holder's Affiliates shall cease to be an
Affiliated Holder at such time as such Holder (or such Holder's Affiliate) no
longer has a representative on the Board of Directors, provided, however, that
in the event such representative ceases to serve on the Company's Board of
Directors during a Black-Out Period, such Holder and such Holder's Affiliates
shall be deemed to be an Affiliated Holder until the termination of such
Black-Out Period.
"Black-Out Period" means any period during which executive officers and
directors of the Company are generally prohibited from engaging in trades in
the Company's securities pursuant to the Company's Xxxxxxx Xxxxxxx Policy.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, par value $.001 per
share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Holder" means the Shareholder, for so long as such person holds any
Registrable Securities, or any person holding Registrable Securities to whom
the rights under this Agreement have been transferred in accordance with
Section 10 hereof.
"Xxxxxxx Xxxxxxx Policy" means the policy adopted by the Company's Board
of Directors, as such may be amended from time to time, relating to
transactions in the Company's securities by the Company's executive officers
and directors.
"Permitted Window" means, with respect to an Affiliated Holder, the period
during which such Affiliated Holder is permitted to sell Registrable Securities
pursuant to the Registration Statement under Section 4(a) of this Agreement.
Except as otherwise set forth in this Agreement, a Permitted Window shall (i)
commence upon the termination of a Black-Out Period, and (ii) terminate upon
the commencement of the next succeeding Black-Out Period.
"Registrable Securities" means the Shares and any shares of Common Stock
of the Company issued or issuable to a Holder in respect of the Shares upon any
conversion, stock split, stock dividend, recapitalization, merger or other
reorganization; provided, however, that shares of Common Stock shall be treated
as Registrable Securities only if and so long as such shares have not been
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registered or sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction.
"register", "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act, and the declaration or ordering of the effectiveness of
such registration statement by the Commission.
"Registration Expenses" means all expenses, except Selling Expenses,
incurred by the Company in complying with Section 4 hereof, including without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, NASD fees and
expenses and blue sky fees and expenses.
"Restricted Securities" means the securities of the Company required to
bear a legend as described in Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Selling Expenses" means all underwriting discounts, selling commissions
and stock transfer taxes applicable to the securities registered by the Holders
and, except as provided herein, all fees and disbursements of counsel for any
Holder.
2. Restrictions on Transferability. Each Holder will not sell, pledge,
assign, encumber or otherwise transfer, or agree to sell, pledge, assign,
encumber or otherwise transfer, directly or indirectly, any Registrable
Securities, except:
(a) to an Affiliate of Shareholder; provided that such Affiliate
agrees in writing to be bound by the terms of this Agreement;
(b) pursuant to an effective registration statement;
(c) pursuant to Rule 144 of the General Rules and Regulations of the
Securities Act;
(d) pursuant to a tender or exchange offer made by the Company or
recommended by the Company's board of directors to the Company's
stockholders; or
(e) (i) during the period beginning on the date hereof and ending on
the second anniversary of this Agreement, in a transaction with
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the prior written consent of the Company, which consent shall not be
unreasonably withheld, and (ii) after the second anniversary of this
Agreement, in a transaction or series of transactions so long as (A) each
transferee is not transferred more than five percent (5%) of the Company's
outstanding voting securities, and after such transaction and all such
transactions made pursuant to this Section 2(e) such transferee will not
directly or indirectly "beneficially own" (as determined pursuant to Rule
13d-3 under the Exchange Act as in effect on the date hereof) more than
five percent (5%) of the Company's outstanding voting securities, (B) the
transferee agrees in writing to be bound by the terms of this Agreement
and (C) in the opinion of counsel satisfactory to the Company (it being
agreed that Xxxxxxx Coie LLP is counsel satisfactory to the company), the
transfer may be made without registration under the Securities Act.
3. Restrictive Legend. Until such time as the Shares have been registered
under the Securities Act or otherwise may be sold by a Holder pursuant to Rule
144(k) thereunder, each certificate representing the Shares or any other
securities issued in respect of such securities upon any stock split, stock
dividend, recapitalization, merger or other reorganization shall be stamped or
otherwise imprinted with the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT
UNDER SAID ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY, SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER SAID ACT.
Each Holder consents to the Company making a notation on its records and giving
instructions to any transfer agent of its capital stock in order to implement
the restrictions on transfer established in this Agreement.
4. Registration on Form S-3.
(a) Registration. It being the intent of the parties to this Agreement
that the Holders of Registrable Securities be able to sell such securities
pursuant to a registration statement declared effective by the Commission, the
Company shall use its reasonable efforts to cause a registration statement on
Form S-3, any successor form, or, if Form S-3 or any successor form is not then
available to effect a registration of the Registrable Securities, on such form
as is then available (collectively, a "Registration Statement") covering all
Registrable
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Securities to be filed within 30 days after the date of this Agreement and to
cause such Registration Statement to become effective within 90 days after the
date of this Agreement. The Company shall use its commercially reasonable
efforts to keep such registration statement effective until the later of (i)
the second anniversary of the date of this Agreement and (ii) the date on which
Shareholder or its Affiliates no longer has a representative on the Company's
Board of Directors, or such earlier date upon which no Holder holds any
Registrable Securities (the "Registration Termination Date").
(b) Limitations on Registration and Sale of Registrable Securities.
Notwithstanding anything in this Agreement to the contrary, the Company's
obligations and the Holders' rights under this Section 4 are subject to the
limitations and qualifications set forth below, which may be waived in writing
by the Company.
(i) The Company shall have no obligation to keep effective a
registration statement hereunder following the Registration Termination
Date.
(ii) The Affiliated Holders will sell Registrable Securities pursuant
to a registration effected hereunder only during a Permitted Window,
subject to paragraph (iii) of this Section 4(b); provided, however, that
if the Company permits an executive officer or a director of the Company
to sell Registrable Securities outside of a Permitted Window pursuant to a
written trading plan established in accordance with and meeting the
requirements of Rule 10b5-1(c) under the Exchange Act (a "10b5-1 Plan"),
the Company shall notify the Affiliated Holders of such occurrence and
permit (A) the Affiliated Holders to effect a 10b5-1 Plan so long as such
plan contains provisions reasonably acceptable to the Company and (B) the
Affiliated Holders to sell Registrable Securities pursuant to such plan
outside of a Permitted Window, subject to paragraph (iii) of this Section
4(b).
(iii) If the Company furnishes to the Holders a certificate signed by
the President or Chief Financial Officer of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company for a Registration Statement to be
effected, or a Permitted Window to be in effect, due to (A) the existence
of a material development or potential material development involving the
Company which the Company would be obligated to disclose in the prospectus
contained in the Registration Statement, which disclosure would in the
good faith judgment of the Board of Directors be premature or otherwise
inadvisable or (B) the existence of other facts or
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circumstances as a result of which the prospectus contained or to be
contained in the Registration Statement includes or would include an
untrue statement of a material fact or omits or would omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made or then existing, the Company may defer the filing
of, or the request for effectiveness with respect to, as applicable, the
Registration Statement, suspend the commencement of a Permitted Window or
effect an early termination of a Permitted Window that has commenced with
respect to Affiliated Holders or otherwise suspend any other Holder's
right to sell Registrable Securities pursuant to the Registration
Statement, as the case may be. Each Holder agrees that, immediately upon
receipt of the certificate referred to above, it shall forthwith
discontinue offers and sales of Registrable Securities pursuant to the
Registration Statement until the earlier of (X) effectiveness of the
Registration Statement, in the case of delay or deferral of the filing or
effectiveness thereof, or (Y) notification to each Affiliated Holder of
the commencement of another Permitted Window and to each other Holder of
the lifting of the suspension of such Holder's right to dispose of
Registrable Securities pursuant to the Registration Statement and delivery
to such Affiliated Holder and other Holders and any underwriter of the
Registrable Securities copies of a supplemented or amended prospectus
(each, a "Permitted Delay"). The Registration Termination Date shall be
extended (I) for a period equal to the number of days that occur during a
Permitted Delay and (II) for an additional period equal to the number of
days that occur during a Permitted Delay on which there is no Black-Out
Period in effect. The Company may elect to so defer, delay or terminate
under clause (A) above only to the extent that the event referred to in
clause (A) also gives rise to a Black-Out Period applicable to all of the
Company's executive officers and directors under the Company's Xxxxxxx
Xxxxxxx Policy (and the certificate furnished to the Holders so
certifies); provided, however, that unless otherwise agreed to by the
Company and the Holders of a majority of the Registrable Securities then
outstanding no Permitted Delay shall exceed the shorter of (1) a period of
one hundred twenty (120) days from the date the certificate referred to
above is furnished to the Holders, (2) fifteen (15) days after the
Company's public announcement of the event referred to in such
certificate, or (3) immediately after the Company has notified the Holders
that it has determined that the event referred to in the certificate is no
longer in existence or is no longer material, which notice shall be
delivered to the Holders promptly following such determination. If the
Company elects to so defer, delay or terminate under clause (B) above, the
Company shall use its commercially reasonable efforts to amend the
Registration Statement,
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supplement the prospectus contained therein or take such other action as
may be necessary to eliminate the situation described in clause (B) as
soon as practicable, but in no event later than five (5) business days
after the certificate referred to above is furnished to the Holders. Any
Holder receiving any notice from the Company with respect to the matters
covered by this Section 4(b)(iii) shall keep the fact and content of such
notice, and the event or circumstances giving rise to such notice,
confidential, except that such Holder may reveal such information to his
attorney to protect his interest, provided such Holder informs such
attorney that the information is confidential and may not be used for any
purpose, including trading in the Company's securities.
(iv) At any time that the Company is obligated under this Agreement
to permit the Holders to sell Registrable Securities pursuant to a
Registration Statement, the Company may, instead of maintaining an
effective Registration Statement for the benefit of the Holders, include,
with the consent of such Holders, such Registrable Securities in a
registration effected for the benefit of the Company and/or other selling
stockholders. In the event that such registration is in connection with an
underwritten offering, the Holders participating in such registration
shall enter into an underwriting agreement in customary form with the
managing underwriter selected by the Company, notwithstanding the
provisions of Section 4(c).
(c) Underwriting. At the election of the Holders representing a majority
of the Registrable Securities then outstanding (the "Deciding Holders") sales
of Registrable Securities under this Section 4 may be made through an
underwriting managed by an underwriter selected by the Company and acceptable
to Deciding Holders (the "Managing Underwriter") provided that at the time of
such sales disposition of Registrable Securities by the Holders participating
in such underwritten offering is otherwise permitted pursuant to the terms of
this Agreement. The Company shall, together with all Holders proposing to
distribute their Registrable Securities through such underwriting, enter into
an underwriting agreement in customary form with the Managing Underwriter. 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. Any Holder so withdrawing shall not sell any Registrable
Securities pursuant to a registration effected under this Agreement until after
the completion of such underwritten distribution. Nothing in this section shall
require the Holders to select and sell any of the Shares through a Managing
Underwriter.
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(d) Registration Procedures. In connection with any registration required
under this Agreement, the Company shall take the actions set forth below.
(i) Prior to filing any registration statement, prospectus, amendment
or supplement with the Commission in connection with any registration
hereunder, the Company shall furnish to one counsel selected by the
Holders of a majority of the Registrable Securities copies of such
documents.
(ii) The Company shall notify each Holder of any stop order issued or
threatened by the Commission and will take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.
(iii) The Company shall comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered
by a registration statement filed pursuant to this Agreement in accordance
with the intended methods of disposition by the Holders as set forth in
such registration statement.
(iv) The Company shall furnish to each Holder and each underwriter,
if any, of Registrable Securities covered by a registration statement
filed pursuant to this Agreement such number of copies of such
registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto), and the prospectus included in such
registration statement (including each preliminary prospectus), and such
other documents as a selling Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Holder.
(v) The Company shall use its best efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of each
State of the United States of America as any of the Holders or
underwriters, if any, of the Registrable Securities covered by a
registration statement filed hereunder reasonably requests, and shall do
any and all other acts and things which may be reasonably necessary or
advisable to enable each selling Holder and each underwriter, if any, to
consummate the disposition in such States of the Registrable Securities
owned by such selling Holders; provided that the Company shall not be
required to (A) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this subsection (v),
(B) subject
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itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(vi) The Company shall promptly notify each Holder entitled to sell
Registrable Securities pursuant to a registration statement filed pursuant
to this Agreement of the happening of any event which comes to the
Company's attention if, as a result of such event, the prospectus included
in the registration statement filed under this Agreement contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and the Company shall promptly
prepare and furnish to each Holder and file with the Commission (in the
case of any event of the kind described in Section 4(b)(iii), no later
than the expiration of the applicable period referred to therein) a
supplement or amendment to such prospectus so that such prospectus will no
longer contain any 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. Each Holder
agrees that, if so directed by the Company, such Holder will deliver to
the Company all copies, other than permanent file copies then in such
Holder's possession, of the most recent prospectus covering Registrable
Securities at the time of receipt of such notice.
(vii) The Company shall take all such other reasonable and customary
actions as each Holder or the underwriters, if any, may reasonably request
in order to expedite or facilitate the disposition of the Registrable
Securities in accordance with the terms of this Agreement.
(viii) The Company shall make available for inspection by the
Holders, any underwriter participating in any disposition pursuant to a
registration statement filed under this Agreement, and any attorney,
accountant or other agent retained by such Holders or underwriters, all
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries, as such person may reasonably request
for the purpose of confirming that such registration statement does not
contain any 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, provided that
the Company obtains reasonably satisfactory assurances that such
information will be used solely for such purpose and will be held in
confidence (except to the extent that it is included in the registration
statement). The Company shall cause the officers, directors and employees
of the Company and each of its subsidiaries to supply such
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information and respond to such inquiries as any Holder or underwriter may
reasonably request or make for the purpose of confirming that such
registration statement does not contain any 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, provided that the Company obtains reasonably satisfactory
assurances that such information will be used solely for such purpose and
will be held in confidence (except to the extent that it is included in
the registration statement).
(ix) The Company may require each Holder promptly to furnish in
writing to the Company such information regarding such Holder, the plan of
distribution of the Registrable Securities and other information as the
Company may from time to time reasonably request or as may be legally
required in connection with such registration
(x) The Company shall notify each Affiliated Holder of the
commencement or termination of a Permitted Window no later than the time
the Company notifies its executive officers and directors of the
termination or commencement of the corresponding Black-Out Period;
provided, however, that the Company need not notify an Affiliated Holder
of the termination or commencement of any regularly scheduled Black-Out
Periods relating to the closing of the Company's fiscal quarters, which
periods commence on the first day of the last month of each fiscal quarter
and terminate at the end of the second full trading day after the Company
publicly announces its results for such quarter.
(e) The Company represents and warrants that, as of the date hereof, (i)
it meets the requirements for the use of Form S-3 for registration of the offer
and sale of the Registrable Securities by the Holders and (ii) the Company is
not aware of any event or circumstance that would give the Company the right to
defer or delay filing of the Registration Statement pursuant to Section
4(b)(iii) hereof.
5. Other Registration Rights. The Holders acknowledge that certain other
stockholders of the Company may now or hereafter have registration rights, and
that such other stockholders may be entitled to sell their securities at the
same time, or pursuant to the same registration and underwriting, as the
Holders hereunder.
6. Expenses of Registration. All Registration Expenses incurred in
connection with the Company's obligations hereunder shall be borne by the
Company. All Selling Expenses relating to securities proposed to be registered
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hereunder shall be borne by the Holders of such securities pro rata on the
basis of the number of shares proposed to be sold by each of them during the
applicable Permitted Window; provided, however, that the Company shall pay for
the fees of one counsel to the Shareholder in an amount not to exceed $10,000.
7. Indemnification.
(a) The Company will indemnify each Holder, each of its officers and
directors, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, with
respect to which registration relating to such Holder's Registrable Securities
has been effected pursuant to this Agreement, against all claims, losses,
damages or liabilities (or actions in respect thereof), arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendment or supplement thereto) or any preliminary prospectus
incident to any such registration, or based on any 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 in
which they were made, not misleading, except insofar as any such claim, loss,
damage or liability arises out of or is based on any information relating to
such Holder or the plan of distribution furnished to the Company in writing by
such Holder or controlling person, and stated to be specifically for use
therein; provided that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any such untrue statement, alleged
untrue statement, omission or alleged omission made in a preliminary
prospectus, such indemnity agreement shall not inure to the benefit of any
person, if a copy of the final prospectus or an amended or supplemental
prospectus, as applicable, was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act, and if the final prospectus or the amended or supplemented
prospectus, as applicable, would have cured the defect giving rise to the loss,
liability, claim or damage. In no event, however, shall the Company have any
indemnification obligation to the extent that the claims, losses, damages or
liabilities as to which indemnification is sought are in connection with an
offer or sale made by a person other than the Company in violation of the terms
of this Agreement (a "Violation").
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which a registration hereunder is effected,
indemnify the Company, each of its directors and officers, each person who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of
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Section 15 of the Securities Act or Section 20 of the Exchange Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on (i) a Violation by such Holder or (ii) any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement or prospectus, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but, in the case of clause (ii)
above, only to the extent that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by such Holder. Notwithstanding the
foregoing, the liability of each Holder under this subsection 7(b) shall be
limited in an amount equal to the public offering price of the shares sold by
such Holder, unless such liability arises out of or is based on a Violation or
willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give written notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or there are separate
and different defenses available to the Indemnified Party and the Indemnifying
Party. It is understood that the Indemnifying Party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (whose consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 7 is unavailable
to an Indemnified Party in respect of any losses, claims, damages or
liabilities
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referred to herein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, Shareholder and any underwriters from the
offering of the securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company, Shareholder and any underwriters in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, Shareholder and
any underwriter shall be deemed to be in the same respective proportions as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by each of the Company and Shareholder
and the total underwriting discounts and commissions received by such
underwriter, in each case as set forth in the table on the cover of the
prospectus, bear to the aggregate public offering price of the securities. The
relative fault of the Company, Shareholder and any underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and Shareholder agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim.
8. Information by Holder. Each Holder of Registrable Securities included
in any registration hereunder shall furnish to the Company such information
regarding such Holder, the Registrable Securities held such Holder and the
distribution proposed by such Holder as the Company may request in writing and
as shall be required in connection with any registration referred to in this
Agreement.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of
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the Restricted Securities to the public without registration, the Company
agrees to use reasonable efforts, at any time after the second anniversary of
the Effective Date, to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the General Rules and Regulations of
the Securities Act; and
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act.
10. Transfer of Registration Rights. If the Shareholder transfers
Registrable Securities to an Affiliate as permitted by Section 2(a) hereof or
any other person permitted pursuant to Section 2(e) hereof, the rights to cause
the Company to register such Registrable Securities granted to the Shareholder
under Section 4 may be assigned by the Shareholder to such transferee, provided
that (i) such transfer is otherwise effected in accordance with applicable
securities laws and the terms of this Agreement, (ii) such transferee acquires
at least 1,000,000 shares of Registrable Securities (as adjusted for stock
splits, stock dividends, stock combinations and the like), (iii) written notice
of such transfer of Registrable Securities and registration rights to such
transferee is promptly given to the Company and (iv) such transferee agrees in
writing to be bound by the provisions of this Agreement. In the event of a
transfer of registration rights in accordance with this Section 10, the Company
shall, upon written request from the transferee, prepare and file with the
Commission, and provide such transferee a reasonable number of copies of, a
prospectus supplement which names such transferee as a selling stockholder.
11. Amendment. Except as otherwise provided above, any provision of this
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Holders of a
majority of the Registrable Securities remaining at the time such amendment or
waiver is made, provided such amendment or waiver affects all Holders
uniformly.
12. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Washington, without regard to conflict of laws provisions.
13. Entire Agreement. This Agreement constitutes the full and entire
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, all other agreements
14
regarding the registration rights of the Shareholder shall hereby expire. The
provisions hereof shall inure to the benefit of, and be binding upon the
successors, assigns, heirs, executors and administrators of the parties hereto.
14. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to Shareholder, to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx XX
Xxxxxxxx 0
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: General Counsel
or at such other address as the Shareholder shall have furnished to the
Company, with a copy to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx XX
Xxxxxxxx 0
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Vice President and Chief Counsel-Intellectual Property
(b) if to the Company, to:
Xxxxx Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Financial Officer
or at such other address as the Company shall have furnished to the Holders,
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(c) if to any other Holder, at such address as such Holder shall have
furnished to the Company.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile or e-mail transmission, or, if sent by
mail, at the earlier of its receipt or 72 hours after the same has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXX CORPORATION
By: /s/ Xxxxxx Xxxxx
-------------------------------
Title: Chief Financial Officer
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Title: President and CEO, FWS
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
