REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated
as of February 28, 2007, is made by and among NexCen Brands, Inc., a Delaware
corporation (the “Company”),
and
those Securityholders listed on Exhibit
A
hereto
(collectively and together with any permitted assigns, the “Securityholders”
and
singularly a “Securityholder”).
WHEREAS,
the
Company; MM Acquisition Sub, LLC, a Delaware limited liability company (the
“Merger
Sub”),
MaggieMoo’s International, LLC, a Delaware limited liability company
(“MaggieMoo’s”),
and
certain Securityholders have entered into that certain Agreement and Plan of
Merger, dated as of February 14, 2007 (the “Merger
Agreement”),
pursuant to which the Company has agreed to acquire all of the outstanding
membership interests of MaggieMoo’s through
the merger of Merger Sub with and into MaggieMoo’s (the “Merger”)
in
accordance with the applicable provisions of the Delaware Limited Liability
Act
(the “Act”)
and
upon the terms and subject to the conditions set forth therein;
and
WHEREAS,
on the terms and conditions set forth in the Merger Agreement, the Company
has
agreed to grant to only those Securityholders receiving Buyer Shares as part
of
the Merger Consideration certain registration rights with respect to the shares
of its common stock, par value $0.01 per share, issuable to the applicable
Securityholder pursuant to the Merger Agreement, as set forth
herein.
NOW
THEREFORE,
in
consideration of the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
“Additional
Shares”
shall
mean those shares of Common Stock issued in satisfaction of the Earn-Out Payment
and Holdback Amount as and to the extent provided in Sections 2.6 and 2.13
of
the Merger Agreement.
“Business
Day”
shall
mean any day that is not a Saturday, a Sunday or a legal holiday in the State
of
New York.
“Closing
Shares”
shall
mean those shares of Common Stock issued to the Securityholders upon the
Closing.
“Commission”
shall
mean the Securities and Exchange Commission or any other federal agency at
the
time administering the Securities Act.
“Common
Stock”
shall
mean common stock, par value $0.01 per share, of the Company.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended and in effect from time
to
time.
“Prospectus”
means
the prospectus (including any preliminary prospectus and/or any final prospectus
filed pursuant to Rule 424(b) under the Securities Act and any prospectus that
discloses information previously omitted from a prospectus filed as part of
an
effective registration statement in reliance on Rule 430A, Rule 430B or Rule
430C under the Securities Act) included in a Registration Statement, as amended
or supplemented by any prospectus supplement or any Issuer Free Writing
Prospectus (as defined in Rule 433(h) under the Securities Act) with respect
to
the terms of the offering or any portion of the Registrable Securities covered
by such Registration Statement and by all other amendments and supplements
to
such prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company under the Exchange Act and incorporated by reference
therein.
“Registrable
Securities”
shall
mean, collectively, the Closing Shares and Additional Shares issued to the
Securityholders pursuant to the Merger Agreement, and
any
other securities issued or issuable with respect to the Closing Shares and
Additional Shares by way of stock dividend or stock split or in connection
with
a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise;
provided,
however,
that
such Closing Shares and Additional Shares shall cease to be Registrable
Securities for purposes of this Agreement when it no longer is a Restricted
Security.
“Required
Securityholders”
shall
mean, at the relevant time of reference thereto, those Securityholders holding,
in the aggregate, fifty percent (50%) of the Registrable Securities then
outstanding and then held by all Securityholders.
“Restricted
Security”
or
“Restricted
Securities”
means
any share of Common Stock except any that (i) has been registered pursuant
to an
effective registration statement under the Securities Act and sold in a manner
contemplated by the prospectus included in such registration statement; (ii)
has
been transferred by the Holder in compliance with the resale provisions of
Rule
144 under the Securities Act (or any successor provision thereto); or (iii)
otherwise has been transferred by the Holder and a new certificate representing
a share of Common Stock not subject to any stop transfer order or any other
transfer restrictions has been delivered by or on behalf of the
Company.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended and in effect from time to
time.
2. Registration
and Sale.
(a) Registration
and Sale.
Subject
to the limitations set forth in this Section 2(a) and Sections 2(c) and 7(h)
below, the Company shall file as soon as reasonably practicable after the
Closing Date but in no event later than 120 days (the “Filing
Date”)
of the
Closing Date, a Registration Statement on Form S-3 (or comparable or successor
short form registration statement or other registration statement should Form
S-3 be unavailable) under the Securities Act to register for resale all
Registrable Securities (a “Registration
Statement”),
unless
the Company is unable to do so as a result of the Commission being unable to
accept such filing due to unavoidable downtime of the XXXXX filing system
through no fault of the Company and such obligation to file the Registration
Statement shall be extended until such delay is resolved.
The
Company shall use its reasonable best efforts to cause each Registration
Statement to become effective as soon as possible after filing and to remain
effective for the period ending on the earlier of (x) the Termination Date
(as
defined below) and (y) the date on which there are no Registrable Securities
covered by the Registration Statement, provided that the Company shall not
be
required to maintain the effectiveness of a Registration Statement to the extent
that a subsequently filed Registration Statement registers the resale of the
Registrable Securities.
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(b) The
Registration Statement shall be filed as a "shelf" registration statement
pursuant to Rule 415 under the Securities Act (or any successor rule) and shall
cover the disposition of all Registrable Securities covered by the Registration
Statement in one or more underwritten offerings, block transactions, broker
transactions, at-market transactions and in such other manner or manners as
may
reasonably be specified by the Required Securityholders. The Company shall
use
its reasonable best efforts to keep such Registration Statement continuously
effective (in accordance with the last sentence of the first paragraph of this
Section 2(a)(i)), and in furtherance of such obligation, shall supplement or
amend such Registration Statement if, as and when required by the rules,
regulations and instructions applicable to the form used by the Company for
such
registration or by the Securities Act or by any other rules and regulations
thereunder applicable to shelf registrations.
(c) Blackout
Periods.
(i) Notwithstanding
anything to the contrary in this Agreement, if at any time after the filing
of
the Registration Statement, the Company, by written notice to the
Securityholders (a “Suspension
Notice”),
may
direct the Securityholders to suspend sales of the Registrable Securities
pursuant to a Registration Statement for such times as the Company reasonably
may determine is necessary and advisable (but in no event for more than (x)
an
aggregate of ninety (90) days in any rolling twelve (12) month period commencing
on the date of this Agreement or (y) more than sixty (60) days in any rolling
90-day period), if any of the following events shall occur: (1) a majority
of
the Board of Directors of the Company shall have determined in good faith that
(A) the offer or sale of any Registrable Securities would materially impede,
delay or interfere with any material proposed financing, offer or sale of
securities, acquisition, merger, tender offer, business combination, corporate
reorganization or other significant transaction involving the Company or (B)
after the advice of counsel, the sale of Registrable Securities pursuant to
the
Registration Statement would require disclosure of non-public material
information not otherwise required to be disclosed under applicable law or
(2) a
majority of the Board of Directors of the Company shall have determined in
good
faith, after the advice of counsel, that the Company is required by law, rule
or
regulation to supplement the Registration Statement or file a post-effective
amendment to the Registration Statement in order to incorporate information
into
the Registration Statement for the purpose of (A) including in the Registration
Statement any prospectus required under Section 10(a)(3) of the Securities
Act;
(B) reflecting in the prospectus included in the Registration Statement any
facts or events arising after the effective date of the Registration Statement
(or of the most recent post-effective amendment) that, individually or in the
aggregate, represents a fundamental change in the information set forth therein;
or (C) including in the prospectus included in the Registration Statement any
material information with respect to the plan of distribution not disclosed
in
the Registration Statement or any material change to such information. Any
period in which the use of the Registration Statement has been suspended in
accordance with this Section 2(c) is sometimes referred to herein as a
“Blackout
Period.”
Upon
the occurrence of any such suspension, the Company shall use its reasonable
best
efforts to cause the Registration Statement to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis or
to
take such action as is necessary to make resumed use of the Registration
Statement, so as to permit the Securityholders to resume sales of the
Registrable Securities as soon as possible.
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(ii) The
Securityholders shall not effect any sales of the Registrable Securities
pursuant to such Registration Statement (or such filings) at any time after
it
has received a Suspension Notice from the Company and prior to receipt of an
End
of Suspension Notice (as defined below). If so directed by the Company, the
Securityholders will deliver to the Company all copies (other than permanent
file copies) then in the Securityholder’s possession of the prospectus covering
the Registrable Securities at the time of receipt of the Suspension Notice.
The
Securityholders may recommence effecting sales of the Registrable Securities
pursuant to the Registration Statement (or such filings) following further
notice to such effect (an “End
of
Suspension Notice”)
from
the Company, which End of Suspension Notice shall be given by the Company to
the
Securityholders in the manner described above promptly following the conclusion
of any Suspension Event and its effect. Until the End of Suspension Notice
is so
given to the Securityholders, the Company’s obligations under Section 3 to
update or keep current the Registration Statement and the Securityholders’ right
to sell Registrable Securities pursuant to the Registration Statement shall
be
suspended, provided that such suspension shall not exceed the periods specified
in Section 2(c)(i) above.
(d) The
Company shall be entitled to include in the Registration Statement filed or
to
be filed by the Company pursuant to Section 2(a) above shares of the capital
stock of the Company to be sold by the Company for its own account or for the
account of any other Securityholders of the Company except as and to the extent
that, such inclusion would reduce the number of Registrable Securities
registered on such Registration Statement.
3. Further
Obligations of the Company.
In
connection with the Registration Statement, the Company agrees that it shall
also use its best efforts to do the following:
(a) prepare
and file with the Commission such amendments and post-effective amendments
to
the Registration Statement and the prospectus used in connection therewith
as
may be necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement or Issuer Free Writing
Prospectus (as defined in Rule 433(h) under the Securities Act), and cause
the
Prospectus as so supplemented or any such Issuer Free Writing Prospectus, as
the
case may be, to be filed pursuant to Rule 424 or Rule 433, respectively (or
any
similar provision then in force) under the Securities Act and to comply with
the
provisions of the Securities Act, the Exchange Act and the rules and regulations
applicable to it with respect to the disposition of all Registrable Securities
covered by the Registration Statement in accordance with each Securityholder’s
intended method of disposition set forth in the Registration
Statement;
(b) furnish
to each Securityholder offering Registrable Securities under the Registration
Statement (A) after the same is prepared and publicly distributed, filed with
the Commission, or received by the Company, one copy of the Registration
Statement, each Prospectus,
each
Issuer Free Writing Prospectus, and each amendment or supplement to any of
the
foregoing, and (B) such number of copies of the Prospectus, each Issuer Free
Writing Prospectus, and all amendments and supplements thereto, as the
Securityholders may reasonably request to facilitate the disposition of the
Registrable Securities owned by the Securityholders;
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(c) register
or qualify the Registrable Securities covered by the Registration Statement
under the securities or “blue sky” laws of such jurisdictions within the United
States as each Securityholder shall reasonably request unless an available
exemption to such registration or qualification requirements is then available;
provided
that the
Company shall not be obligated to register or qualify such Registrable
Securities in any jurisdiction in which such registration or qualification
would
require the Company (A) to subject itself to general taxation in any such
jurisdiction, (B) file any general consent to service of process, or (C) to
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(c);
(d) timely
file with the Commission such information as the Commission may prescribe under
Sections 13 or 15(d) of the Exchange Act, and otherwise use commercially
reasonable efforts to ensure that the public information requirements of Rule
144 under the Securities Act are satisfied with respect to the
Company;
(e) notify
the Securityholders promptly in writing (A) of any comments by the Commission
with respect to the Registration Statement or the Prospectus, or any request
by
the Commission for the amending or supplementing thereof or for additional
information with respect thereto, (B) of the issuance by the Commission of
any
stop order or other suspension of the effectiveness of the Registration
Statement which is known to the Company or the initiation of any proceedings
for
that purpose which are known to the Company and (C) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of such Registrable Securities for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purposes; and
(f) as
promptly as practicable after becoming aware of such event, notify the
Securityholders of the occurrence of any event of which the Company has
knowledge, as a result of which the Prospectus included in the Registration
Statement, as then in effect, or any Issuer Free Writing Prospectus, taken
as a
whole with the Prospectus, 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, in light of the circumstances under which they
were
made, not misleading, and to use its commercially reasonable efforts to promptly
prepare an amendment to the Registration Statement and supplement to the
Prospectus to correct such untrue statement or omission, and deliver a number
of
copies of such supplement or amendment to the Securityholders as the
Securityholders may reasonably request.
4. Obligations
of the Securityholders.
In
connection with the registration of the Registrable Securities, the
Securityholders shall have the following obligations:
(a) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement of the Registrable Securities of each
Securityholder that such Securityholder shall furnish to the Company in writing
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of the Registrable Securities held by it,
as
shall be reasonably required to effect the registration of such Registrable
Securities, and such Securityholder shall execute such documents in connection
with such registration as the Company may reasonably request.
5
(b) The
Securityholder, by such Securityholder’s acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by
the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Securityholder has notified the Company in
writing of such Securityholder’s election to exclude all of such
Securityholder’s Registrable Securities from the Registration
Statement.
(c) The
Securityholders shall not prepare or use any Free Writing Prospectus (as such
term is defined in Rule 405 under the Securities Act) unless any and all issuer
information included therein has been approved by the Company and such approval
shall not be unreasonably delayed, conditioned or withheld.
(d) As
promptly as practicable after becoming aware of such event, the Securityholders
shall notify the Company of the occurrence of any event, as a result of which
the Prospectus included in a 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,
in
light of the circumstances under which they were made, not
misleading.
(e) Each
Securityholder agrees that, upon receipt of any notice from the Company of
the
happening of any event of the kind described in Sections 3(e)(B), 3(e)(C) or
3(f) above, such Securityholder shall immediately discontinue its disposition
of
Registrable Securities pursuant to the Registration Statement.
(f) Each
Securityholder shall take all other reasonable actions necessary to expedite
and
facilitate the disposition by the Securityholder of the Registrable Securities
pursuant to the Registration Statement.
(g) The
Securityholders hereby covenants and agrees that it will comply with any
prospectus delivery requirements of the Securities Act applicable to it in
connection with sales of Registrable Securities pursuant to the Registration
Statement.
5. Expenses.
All
expenses incurred by the Company in complying with its obligations under this
Agreement shall be paid by the Company, except that the Company shall not be
liable for any discounts or selling commissions to any underwriter in respect
of
the Registrable Securities sold by any Securityholders but shall be liable
for
the reasonable fees and expenses of one form of counsel for all the
Securityholders (which fees and expenses shall not exceed $15,000 in the
aggregate).
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6. Indemnification
and Contribution.
(a) Indemnification
by the Company.
If any
Registrable Securities are registered for resale under the Securities Act
pursuant to this Agreement, the Company shall indemnify and hold harmless each
Securityholder of such Registrable Securities and such Securityholder’s
directors, officers, employees and agents, against any losses, claims, damages,
liabilities or expenses, joint or several, to which such Securityholder or
any
such director, officer, employee or agent may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement of any material fact
contained, on the effective date thereof, in the registration statement under
which such Registrable Securities were registered under the Securities Act
or
any final prospectus contained therein (in each case as amended or supplemented,
including without limitation, any update pursuant to Rule 424(b) under the
Securities Act), provided that such final prospectus was used to effect a sale
by such Securityholder. (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, with respect to any prospectus, necessary to make
the
statements therein in light of the circumstances under which they were made
not
misleading, or (iii) any violation by the Company of the Securities Act or
state
securities or blue sky laws applicable to the Company and relating to any action
or inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon any
untrue statement or any omission made in such registration statement, final
prospectus, or amendment or supplement based upon and in conformity with written
information furnished to the Company by such Securityholder specifically for
use
in such registration statement, prospectus, or amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Securityholder or such director, officer, employee
or agent.
(b) Securityholders’
Indemnification.
In
connection with the Registration Statement, each such Securityholder will
furnish to the Company such information as shall reasonably be requested by
the
Company for use in such registration statement or prospectus and shall
severally, and not jointly, indemnify, to the extent permitted by law, the
Company, its directors, officers, employees and agents against any losses,
claims, damages, liabilities and expenses (under the Securities Act, at common
law or otherwise), insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained on the effective date thereof in the
Registration Statement, or any final prospectus included therein (in each case
as amended or supplemented, including without limitation, any update pursuant
to
Rule 424(b) under the Securities Act), but only to the extent that such untrue
statement of a material fact is contained in, or such material fact is omitted
from, written information furnished by such Securityholder, specifically for
use
in such registration statement or prospectus; provided,
however,
that
the obligations of such Securityholders hereunder shall be limited to an amount
equal to the net proceeds to each Securityholder of Registrable Securities
sold
in connection with such registration.
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(c) Indemnification
Procedures.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof (an “Indemnification
Notice”),
but
the omission so to notify the indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party unless the indemnifying
party is materially and adversely affected thereby. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof and, after notice from the indemnifying party
to
such indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 6(c) for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof. Notwithstanding the
foregoing, the indemnified party shall have the right to employ its own counsel
at its expense unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying party or (ii) the attorneys for the
indemnifying party shall have concluded that there are defenses available to
the
indemnified party that are different from or additional to those available
to
the indemnifying party and such counsel reasonably concludes that it is
therefore unable to represent the interests of both the indemnified and
indemnifying party (in which case the indemnifying party may employ separate
counsel). In no event shall the indemnifying party be liable for fees and
expenses of more than one counsel separate from its own counsel.
(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
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but it is judicially determined (by the entry of a final judgment or decree
by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, and in each such case, the Company and such holder will contribute
to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the registration
statement bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will
be
required to contribute any amount in excess of the net proceeds received by
such
holder from the sale of such Registrable Securities offered by it pursuant
to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty
of
such fraudulent misrepresentation.
7. Miscellaneous.
(a) Notices.
All
notices and other communications pursuant to this Agreement shall be in writing,
either hand delivered or sent by certified or registered mail with charges
prepaid or by commercial courier guaranteeing next business day delivery, or
sent by facsimile, and shall be addressed:
8
(i) in
the
case of the Company, to the Company at its principal office set forth in the
Merger Agreement; and
(ii) in
the
case of a Securityholder, to the address provided by such Securityholder to
the
Company.
Any
notice or other communication pursuant to this Agreement shall be deemed to
have
been duly given or made and to have become effective (i) when delivered in
hand
to the party to which it was directed, (ii) if sent by facsimile and properly
addressed in accordance with the foregoing provisions of this Section 7(a),
when
received by the addressee, (iii) if sent by commercial courier guaranteeing
next
business day delivery, on the business day following the date of delivery to
such courier, or (iv) if sent by first-class mail, postage prepaid, and properly
addressed in accordance with the foregoing provisions of this Section 7(a),
(A)
when received by the addressee, or (B) on the third business day following
the
day of dispatch thereof, whichever of (A) or (B) shall be the
earlier.
(b) Assignment.
The
right
to have the Company register Registrable Securities pursuant to this Agreement
may be assigned or transferred only with the prior written consent of the
Company
(such
consent not to be unreasonably withheld, conditioned or delayed), and any such
assignment or transfer without such consent shall be void and of no effect.
In
the event of any such permitted assignment or transfer by any Securityholder
to
any permitted transferee of all or any portion of such Registrable Securities,
such transfer will be allowed only if: (a) the Securityholder agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment, (b) the Company is, within a reasonable time after such transfer
or
assignment, furnished with written notice of (i) the name and address of such
transferee or assignee and (ii) the Registrable Securities with respect to
which
such registration rights are being transferred or assigned, (c) immediately
following such transfer or assignment, the Registrable Securities so transferred
or assigned to the transferee or assignee constitute Restricted Securities,
(d)
at or
before the time the Company received the written notice contemplated by clause
(b) of this sentence the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein, and (e) the
Company is furnished with an opinion of counsel, which counsel and opinion
shall
be satisfactory to the Company, to the effect that the permitted assignment
would be in compliance with the Securities Act and any applicable state or
other
securities laws.
(c) Amendment
and Waiver.
This
Agreement may not be amended except by an instrument in writing signed by the
Company and by the Required Securityholders. Any Securityholder may waive any
of
its, his or her rights under this Agreement (including, without limitation,
such
Securityholder’s right to cause any other Person to comply with such other
Person’s obligations under this Agreement) only by an instrument in writing
signed by such Securityholder; provided,
however,
that
(i) any rights under this Agreement which inure to the benefit of any and all
Securityholders (including, without limitation, the right of any and all
Securityholders to cause any other Person to comply with such other Person’s
obligations under this Agreement) may be waived on behalf of any and all
Securityholders by an instrument in writing signed by the Required
Securityholders. Any waiver, pursuant to this Subsection 9(c), of a breach
of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
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(d) Governing
Law; Headings.
This
agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware without regard to conflict of law provisions of such state.
The headings in this Agreement are for convenience only and shall not affect
the
construction hereof.
(e) Severability.
In the
event that any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(f) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. This Agreement and the Merger Agreement supersede all prior
agreements and understandings between the parties with respect to the subject
matter contained herein and therein.
(g) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(h) Termination
of Registration Rights.
All of
the Company's obligations to register Registrable Securities covered by a
Registration Statement (including without limitation to keep the Registration
Statement covering such Registrable Securities continuously effective) shall
terminate, if not previously terminated pursuant to the terms of Section 2(a),
upon the earlier of (x) two (2) years from the date of the effectiveness of
such
Registration Statement and (y) such date that each Securityholder may sell
all
of the Registrable Securities held by such Securityholder within a three-month
period in accordance with Rule 144(d) (the “Termination
Date”);
provided that
such
Termination Date will be extended solely with respect to the Additional Shares
for a period of one (1) year after receipt of such shares by the Securityholder;
provided further that the Termination Date shall be extended for the Registrable
Securities for a period of time equal to the length of: (1) any Blackout
Periods; plus (2) a period of time of up to three months to the extent that
the
Required Securityholders determine in good faith and after consultation with
the
Company that an extension is so required due to market conditions; plus (3)
the
period during which a stop order issued by the Commission is in effect. The
parties acknowledge and agree that any extension described above shall begin
to
run upon its occurrence regardless of whether a prior extension is in
effect.
[Remainder
of page intentionally left blank]
10
IN
WITNESS WHEREOF,
the
Company and the Securityholders have executed this Agreement as of the date
first above written.
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By:
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/s/
Xxxxxx X. X’Xxxxx
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Name:
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Xxxxxx X. X’Xxxxx | ||
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Title:
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Chief Executive Officer | ||
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SECURITYHOLDERS
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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Name:
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Xxxxxx X. Xxxxxxxx | ||
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx | ||
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By:
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/s/
X.X. Xxxxxxxxxxxx
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Name:
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X.X. Xxxxxxxxxxxx | ||
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By:
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/s/
Xxxxx X. Blue
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Name:
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Xxxxx X. Blue | ||
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By:
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/s/
Xxxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxxx X. Xxxxxxxx | ||
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By:
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/s/
Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx Xxxxxxxx | ||
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By:
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/s/
Xxx X. Xxxxxxx
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Name:
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Xxx X. Xxxxxxx | ||
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx Xxxx | ||
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx | ||
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxx | ||
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By:
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/s/
Xxxxx Xx Xxxxxx
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Name:
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Xxxxx Xx Xxxxxx | ||
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By:
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/s/
X.X. Xxxxx
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Name:
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X.X. Xxxxx | ||
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx X. Xxxxxxx | ||
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By:
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/s/
Xxxxx X. Xxxxxxx, Xx.
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Name:
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Xxxxx X. Xxxxxxx, Xx. | ||
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx Xxxxxxx | ||
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By:
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/s/
Xxxxxxxx X. Xxxxxxx
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||
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Name:
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Xxxxxxxx X. Xxxxxxx | ||
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By:
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/s/
Xxxxx Xxxxx
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||
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Name:
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Xxxxx Xxxxx | ||
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By:
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Ridgewood
Partners
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/s/
Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx Xxxxxx | ||
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By:
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/s/
Xxxxxxxx X. Xxxxxxxx
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||
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Name:
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Xxxxxxxx X. Xxxxxxxx | ||
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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||
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Name:
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Xxxxxxx Xxxxxxxxx | ||
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By:
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/s/
Xxxx Xxxxx
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||
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Name:
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Xxxx Xxxxx | ||
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By:
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/s/
Xxxxxx X. Xxxxxx
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||
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Name:
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Xxxxxx X. Xxxxxx | ||
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By:
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/s/
Xxxxxxx X. Xxxxx
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||
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Name:
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Xxxxxxx X. Xxxxx | ||
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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||
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Name:
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Xxxxxx X. Xxxxxxxx | ||
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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||
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Name:
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Xxxxxxx X. Xxxxxxxx | ||
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By:
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TSI
Holding Company
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||
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/s/
Xxxxx X. Xxxxxx
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|||
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Name:
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Xxxxx X. Xxxxxx | ||
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By:
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/s/
Xxxxxxx X. Xxxxx
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||
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Name:
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Xxxxxxx X. Xxxxx | ||
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By:
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/s/
Xxxxx Xxxxxx
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||
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Name:
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Xxxxx Xxxxxx | ||
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By:
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/s/
Xxxxxx Xxxxxx
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||
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Name:
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Xxxxxx Xxxxxx | ||
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By:
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/s/
Xxx Xxxxx
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||
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Name:
|
Xxx Xxxxx | ||
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By:
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/s/
Xxx X. Xxxxxx
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||
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Name:
|
Xxx X. Xxxxxx | ||
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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||
|
Name:
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Xxxxxxx X. Xxxxxxx, | ||
| (Trustee of GPP Residual Trust) | |||
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By:
|
/s/
Xxxxxxx Xxxx
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||
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Name:
|
Xxxxxxx Xxxx | ||
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By:
|
GW
Investments Partnership
|
||
|
/s/
Xxxxx Xxxxxxxxx
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|||
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Name:
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Xxxxx Xxxxxxxxx | ||
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By:
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/s/
Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
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||
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Name:
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Xxxxx Xxxxxx/Xxxxxxx Xxxxxx | ||
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By:
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/s/
Xxxx Xxxxxxxx
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||
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Name:
|
Xxxx Xxxxxxxx | ||
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By:
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Name:
|
Xxxxxx Xxxxxxx | ||
|
By:
|
/s/
Xxxx Xxxx Xxxxxxxxxx
|
||
|
Name:
|
Xxxx Xxxx Xxxxxxxxxx | ||
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By:
|
/s/
Xxxxx X. XxXxxxxx
|
||
|
Name:
|
Xxxxx X. XxXxxxxx | ||
Exhibit
A
Securityholders
|
Name
of Securityholder
|
|
Xxxxxx
X. Xxxxxxxx
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|
Xxxxx
Xxxxxxxx
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|
Xx
Xxxxxxxxxxxx
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Xxxxx
X. Blue
|
|
Xxxxxxxx
X. Xxxxxxxx
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|
Xxxxxx
Xxxxxxxx
|
|
Xxx
X. Xxxxxxx
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|
Xxxxxxx
Xxxx
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|
Xxxxxx
Xxxxxx
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|
Xxxxxxx
X. Xxxxxxx
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|
Xxxxx
Xx Xxxxxx
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|
X.X.
Xxxxx
|
|
Xxxxx
X. Xxxxxxx
|
|
Xxxxx
X. Xxxxxxx, Xx.
|
|
Xxxxx
Xxxxxxx
|
|
Xxxxxxxx
X. Xxxxxxx
|
|
Xxxxx
Xxxxx
|
|
Ridgewood
Partners
Xxxxxxx
Xxxxxx, G.P.
|
|
Xxxxxxxx
X. Xxxxxxxx
|
|
Xxxxxxx
Xxxxxxxxx
|
|
Xxxx
X. Xxxxx
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|
Xxxxxx
X. Xxxxxx
|
|
Xxxxxxx
X. Xxxxx
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|
Xxxxxx
X. Xxxxxxxx
|
|
Xxxxxxx
X. Xxxxxxxx
|
|
TSI
Holding Company
*c/o
Xxxxx X. Xxxxxx
|
|
Xxxxxxx
X. Xxxxx
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|
Xxxxx
Xxxxxx
|
|
Xxxxxx
Xxxxxx
|
|
Xxx
Xxxxx Revocable Trust
c/o
Xxx Xxxxx
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|
Xxx
X. Xxxxxx
|
|
GPP
Residual Trust
c/o
Xxxxxxx X. Xxxxxxx
|
|
Xxxxxxx
Xxxx
|
|
GW
Investments Partnership
|
|
Xxxxx
Xxxxxx and Xxxxxxx Xxxxxx
|
|
Xxxx
Xxxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
|
Xxxx
Xxxx Xxxxxxxxxx
|
|
Xxxxx
X. XxXxxxxx
|
|
|
