EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of February 26, 1999 (this
"Agreement"), between Comverse Technology, Inc., a New York corporation (the
"Company"), and Xxxxxx Xxxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxxxxxx and any
other Person listed on Schedule A hereto who from time to time agrees to become
a party to this Agreement in accordance with the provisions hereof (Xxxxxx
Xxxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxxxxxx and each such other Person who
becomes a party hereto is referred to herein as a "Stockholder" and
collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Stockholders were holders of shares of capital stock ("Amarex
Stock") of Amarex Technology, Inc., a Delaware corporation ("Amarex"); and
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of February
26, 1999, among the Company, Comverse Acquisition Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Sub"), Amarex and the
Stockholders, Sub will be merged with and into Amarex, with Amarex being the
corporation surviving from the merger (the "Merger"); and
WHEREAS, pursuant to the Merger, each share of Amarex Stock will be
converted into the right to receive 1.75 shares of common stock, par value $.10
per share, of the Company ("Common Stock"); and
WHEREAS, upon consummation of the Merger, the Stockholders will receive
shares of Common Stock in respect of the Amarex Shares theretofore owned by the
Stockholders which will be subject to the provisions of Rule 145 under the
Securities Act of 1933, as amended; and
WHEREAS, the Stockholders and the Company desire to set forth herein their
agreement with respect to the registration rights, and certain other related
covenants, applicable to the shares of Common Stock to be issued by the Company
to the Stockholders upon consummation of the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations, covenants and agreements herein contained, the parties hereto agree
as follows:
NYFS11...:\94\37994\0004\2179\AGR1209Y.37E
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Commission" means the Securities and Exchange Commission or any other
similar or successor agency of the United States government administering the
Securities Act.
"Effective Date" means the effective date of the Merger.
"Exchange Act" means the Securities Exchange Act of 1934, and any similar
or successor federal statute, and the rules and regulations of the Commission
thereunder, as in effect at the time.
"Offering" means the registration of the Company's securities under the
Securities Act for sale to the public.
"Person" means a corporation, an association, a trust, a partnership, a
limited liability company, a joint venture, an organization, a business, an
individual, a government or political subdivision thereof, or a governmental
body.
"Prospectus" means the prospectus included in any Registration Statement,
together with and including any amendment or supplement to such prospectus,
covering the Offering of any portion of the Registrable Securities covered by a
Registration Statement, and all material incorporated by reference in such
Prospectus.
"Registering Stockholder" means any Stockholder whose Registrable
Securities are included in a Registration Statement filed pursuant to this
Agreement.
"Registrable Securities" means the Shares except that a security will
cease to be a Registrable Security when it (a) has been effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (b) becomes saleable under, or is distributed to the
public pursuant to, Rule 144 (or any similar rule then in force) under the
Securities Act or (c) has otherwise been transferred by the Stockholder.
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"Registration Statement" means a registration statement filed by the
Company with the Commission covering Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, together with the rules and regulations of the
Commission promulgated thereunder, as in effect at the time.
"Shares" means the shares of Common Stock issued by the Company to the
Stockholders upon consummation of the Merger, any shares of stock or other
securities into which or for which such shares of Common Stock may be changed,
converted or exchanged after the Effective Date, and any other shares or
securities issued to the Stockholders after the Effective Date in respect of
such shares of Common Stock (or such shares of stock or other securities into
which or for which such shares are so changed, converted or exchanged) upon any
reclassification, stock combination, stock subdivision, stock dividend, share
exchange, merger, consolidation or similar transaction. The number of shares of
Common Stock issued by the Company to each Stockholder upon consummation of the
Merger is set forth on Schedule A annexed hereto.
"Stockholders Representative" has the meaning set forth in Section 5.3
hereof.
ARTICLE II
REGISTRATION RIGHTS
2.1 Initial Registration. The Company shall, as soon as reasonably
practicable after the Effective Date, but in any event no later than 60 days
after the Effective Date, prepare and file a Registration Statement on Form S-3
(or other appropriate form) (the "Initial Registration Statement") for an
Offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act covering an Offering of such number of Registrable Securities, if
any, then owned by the Stockholders not exceeding, in the aggregate, one-quarter
(1/4) of the Shares. The number of Registrable Securities to be registered under
the Initial Registration Statement shall be apportioned among the Stockholders
in proportion to the number of Registrable Securities then held by each such
Stockholder. The Company will use its best efforts to cause the Initial
Registration Statement to be declared effective as soon as reasonably
practicable after filing thereof with the Commission. Subject to Section 2.5
hereof, the Company will use its best efforts to keep the Initial Registration
Statement effective for as long as reasonably specified in the plan of
distribution contained therein.
2.2 Demand Registration. The Stockholders may, by the Stockholder
Representative giving at least 60 days' prior written notice to the Company (the
"Demand Notice"), make one demand during each of (i) the one year period
commencing on the
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first anniversary of the Effective Date, (ii) the one year period commencing on
the second anniversary of the Effective Date and (iii) the one year period
commencing on the third anniversary of the Effective Date (each, a "Demand
Registration Period") that the Company prepare and file with the Commission
during the Demand Registration Period in which the Demand Notice is given, and
subject to Section 2.4 below, the Company shall prepare and file during such
Demand Registration Period, a Registration Statement on Form S-3 (or other
appropriate form) (a "Demand Registration Statement") for an Offering to be made
on a continuous basis pursuant to Rule 415 under the Securities Act. covering
such number of Registrable Securities, if any, then owned by the Stockholders
not exceeding, in the aggregate, one-quarter (1/4) of the Shares. The
Stockholders shall not be entitled to make more than one demand during any
Demand Registration Period, unless the Company and the Stockholder
Representative agree otherwise; provided, however, that written notice of such
demand may be given no earlier than 60 days prior to the commencement of the
Demand Registration Period to which such demand relates. The number of
Registrable Securities to be registered under any Demand Registration Statement
shall be apportioned among the Stockholders in proportion to the number of
Registrable Securities then held by each such Stockholder. Subject to Section
2.4 below, the Company shall use its best efforts to file such Demand
Registration Statement as soon as reasonably practicable after the Company
receives the Demand Notice, but in any event such Demand Registration Statement
shall be filed no later than 60 days after the Company receives the Demand
Notice. The Company will use its best efforts to cause any Demand Registration
Statement to be declared effective as soon as reasonably practicable after the
filing thereof with the Commission. Subject to Section 2.5 hereof, the Company
will keep such Demand Registration Statement effective for as long as reasonably
specified in the plan of distribution contained therein.
2.3 Company Participation. The Company may elect to register equity
securities of the Company in any Registration Statement prepared hereunder or to
participate in the Offering, by including any of its equity securities in such
Registration Statement, by giving written notice of such election to the
Stockholder Representative stating the number of equity securities proposed to
be sold by the Company in the Offering (the "Other Securities").
2.4 Delay. The Company may delay the filing of any Demand Registration
Statement if upon receipt of the Demand Notice (a) the Company notifies the
Stockholders that it is contemplating filing a registration statement for a
primary offering within 90 days of such demand, (b) the Company notifies the
Stockholders that a material event has occurred or is likely to occur that has
not been publicly disclosed that, if disclosed, would have a material adverse
effect on the Company, or (c) the Company decides that the registration and
offering could interfere with, or would require the Company to accelerate public
disclosure of, any material financing, acquisition, disposition, corporate
reorganization or other material transaction involving the Company or its
subsidiaries. In the case of clause (a) of this subsection, the Company will use
its best efforts, as soon as
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practicable, upon the earlier of the Company's abandonment of its contemplated
registration statement or the expiration of 60 days after the consummation of
the contemplated Offering, to file such Registration Statement unless such
Demand Notice is withdrawn by the Stockholders. In the case of clause (b) or
clause (c), the Company may not delay the filing of the Registration Statement
for more than 90 days from the date of the Demand Notice unless such Demand
Notice is withdrawn by the Stockholders. If there is a postponement under any
clause above, the Demand Notice may be withdrawn by the Stockholders by notice
to the Company. In such case, no Demand Notice will have been delivered for the
purposes of Section 2.2.
2.5 Certain Notices; Suspension of Sales. The Company may, upon written
notice to the Registering Stockholders, suspend such Registering Stockholder's
use of any Prospectus (which is a part of any Registration Statement) for a
reasonable period not to exceed sixty (60) days if the Company in its reasonable
judgment believes it may possess material non-public information the disclosure
of which in its reasonable judgment would have a material adverse effect on the
Company and its subsidiaries taken as a whole. Each Registering Stockholder of
Registrable Securities agrees by its acquisition of such Registrable Securities
to hold any communication by the Company pursuant to this Section 2.5 in
confidence.
ARTICLE III
REGISTRATION PROCEDURES
3.1 Registration Procedures. Subject to the terms of this Agreement, the
Company will use its best efforts to effect any registration under Sections 2.1
or 2.2 in a manner that permits the sale of the Registrable Securities covered
thereby in accordance with the intended method or methods of disposition.
3.2 Copies; Review. At least five (5) Business Days before filing a
Registration Statement or Prospectus or any amendment or supplement thereto
(whether before or after effectiveness), the Company will furnish to the
Stockholder Representative copies of all such documents proposed to be filed.
Such documents will be subject to the review of the Stockholder Representative.
The Company will not file any Registration Statement or any Prospectus or any
amendment or supplement thereto (whether before or after effectiveness) to which
the Stockholder Representative may reasonably object.
3.3 Amendments. Subject to Section 2.5 hereof, the Company will (a)
prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable time period required herein,
(b) cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and (c) comply with the provisions of the
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Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Registering Stockholders set forth in
such Registration Statement or Prospectus supplement.
3.4 Notification. The Company will promptly notify the Registering
Stockholders and (if requested by any such Person) confirm such notification in
writing, (a) when the Prospectus has been filed, and, with respect to the
Registration Statement, when it has become effective, (b) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (c) of the issuance of any stop order
suspending the effectiveness of the Registration Statement, or the refusal or
suspension of qualification of registration of Registrable Securities, or the
initiation of any proceedings for that purpose, (d) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, and (e) of any event that makes any material statement made in the
Registration Statement, the Prospectus or any document incorporated therein by
reference untrue or that requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading in any material respect. Subject to Section 2.5
hereof, the Company will make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at the
earliest possible moment. If any event contemplated by clause (e) occurs, the
Company will promptly prepare a supplement or post-effective amendment to the
Registration Statement or the Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Upon receipt of any notice from the
Company that any event of the kind described in clause (b), (c), (d) or (e) has
happened, each Registering Stockholder will discontinue offering the Registrable
Securities until the Registering Stockholder receives the copies of the
supplemented or amended Prospectus contemplated by the previous sentence, or
until it is advised in writing by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus.
3.5 Information Included. The Company may require each Registering
Stockholder to furnish to the Company such information regarding the Registering
Stockholder and the distribution of the Registrable Securities as the Company
may from time to time reasonably require for inclusion in the Registration
Statement, and the Company may exclude from such registration the Registrable
Securities of any Registering Stockholder that fails to furnish such information
within a reasonable time after receiving
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such request. Each Registering Stockholder agrees to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Registering Stockholder not misleading. If
requested by the Registering Stockholders, the Company will as soon as
practicable incorporate in a Prospectus supplement or post-effective amendment
such information that the Registering Stockholders reasonably request be
included therein relating to the sale of the Registrable Securities, including,
but not limited to, information with respect to the number of Registrable
Securities being sold and any other terms of the distribution of the Registrable
Securities to be sold in such Offering. Subject to Section 2.5 hereof, the
Company will make all required filings of such Prospectus supplement or
post-effective amendment as promptly as practicable after being notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
3.6 Copies. The Company will (a) promptly furnish to the Registering
Stockholders without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference), and (b) promptly
deliver to the Registering Stockholders without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons may reasonably request. The Company consents
to the use of the Prospectus or any amendment or supplement thereto by the
Registering Stockholders in connection with the Offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto.
3.7 Blue Sky Registration. Prior to any Offering of Registrable Securities
covered by a Registration Statement under Sections 2.1 or 2.2, the Company will
register or qualify or cooperate with the Registering Stockholders and their
respective counsel in connection with the registration or qualification of such
Registrable Securities under the securities or blue sky laws of any such
jurisdictions in the United States as the Registering Stockholders reasonably
request in writing, and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities. The Company will not be required to take any actions under this
Section 3.7 if such actions would require the Company to submit to the general
taxation of any jurisdiction where it is not then so subject or to file in any
jurisdiction any general consent to service of process.
3.8 Certificates. The Company will cooperate with the Registering
Stockholders to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold that do not bear any restrictive
legends. Such certificates will be in such denominations and registered in such
names as the Registering Stockholders request at least two Business Days prior
to any sale of Registrable Securities.
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3.9 Section 11(a) Notice. The Company will make generally available to its
stockholders earnings statements satisfying the provisions of Section 11(a) of
the Securities Act.
3.10 Expenses. Except as provided below, all expenses incident to the
Company's performance of or compliance with this Agreement, including, but not
limited to, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger expenses,
telephone and delivery expenses, and fees and disbursements of counsel to the
Company and of independent certified public accountants of the Company, will be
borne by the Company. The Company will also pay its internal expenses, the
expense of any annual audit and the fees and expenses of any Person retained by
the Company. All such expenses are referred to as "Registration Expenses." The
Registering Stockholders shall pay all fees and disbursements of counsel to the
Registering Stockholders, all fees, commission and discounts with respect to the
sale of any Registrable Securities and any transfer taxes incurred in respect of
such sale.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification By The Company. The Company will indemnify and hold
harmless each of the Registering Stockholders from and against any and all
losses, claims, damages and liabilities ("Losses") reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted to which the Registering Stockholder may become
subject under the Securities Act, the Exchange Act or other federal or state
securities law or regulation, at common law or otherwise, insofar as such Losses
arise out of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus or any amendment or supplement thereto or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (b) any violation
by the Company of the Securities Act or the Exchange Act, or other federal or
state securities law applicable to the Company and relating to any action or
inaction required of the Company in connection with such registration. In
addition, the Company will reimburse the Registering Stockholder for any
reasonable investigation, legal or other expenses incurred by such Registering
Stockholder in connection with investigating or defending any such Loss.
Notwithstanding anything herein to the contrary, the Company will not be liable
with respect to the portion of any such Loss that (i) arises out of or is based
upon any alleged untrue statement or alleged omission made in such Registration
Statement, preliminary Prospectus, Prospectus, or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Registering Stockholders specifically for use therein or
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(ii) attributable to a Registering Stockholder's (A) use of a Prospectus after
being notified by the Company to suspend use thereof pursuant to Section 3.3
above or (B) failure to deliver a final Prospectus to the Person asserting any
losses, claims, damages and liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, or caused by 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, if such material misstatement or omission or
alleged material misstatement or omission was cured in an amended or
supplemented Prospectus prepared by the Company and delivered to the Registering
Stockholder at or prior to the time written confirmation of sale to such Person
was required to be made. The foregoing indemnity will remain in full force and
effect regardless of any investigation made by or on behalf of the Registering
Stockholder, and will survive the transfer of such securities by the Registering
Stockholder.
4.2 Indemnification By Registering Stockholders. If a Registering
Stockholder sells Registrable Securities under a Prospectus that is part of a
Registration Statement, the Registering Stockholder will indemnify and hold
harmless the Company, its directors and each officer who signed such
Registration Statement and each Person who controls the Company (within the
meaning of Section 15 of the Securities Act) (each, a "Controlling Person")
under the same circumstances as the foregoing indemnity from the Company to the
Registering Stockholders but only to the extent that such Losses arise out of or
are based upon any untrue or allegedly untrue statement of a material fact or
omission or alleged omission of a material fact that was made in the Prospectus,
the Registration Statement, or any amendment or supplement thereto, in reliance
upon and in conformity with written information relating to a Registering
Stockholder furnished to the Company by a Registering Stockholder expressly for
use therein. In no event will the aggregate liability of a Registering
Stockholder exceed the amount of the net proceeds received by the Registering
Stockholder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. Such indemnity will remain in full force and effect
regardless of any investigation made by or on behalf of the Company or such
officer, director, employee or Controlling Person, and will survive the transfer
of such securities by the Registering Stockholder.
4.3 Contribution. If the indemnification provided for in Sections 4.1 or
4.2 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which any such Section
would otherwise apply by its terms (other than by reason of exceptions provided
therein), then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will have a joint and several obligation to contribute to the
amount paid or payable by such indemnified party as a result of such Losses.
Such contribution will be in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses, as well as any other relevant equitable
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considerations. The relative fault of such indemnifying party, on the one hand,
and indemnified party, on the other hand, will be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been taken or made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such action, statement or omission. The amount paid or payable by a
party as a result of any such Losses will be deemed to include any
investigation, legal or other fees or expenses incurred by such party in
connection with any investigation or proceeding, to the extent such party would
have been indemnified for such expenses if the indemnification provided for in
Sections 4.1 or 4.2 was available to such party.
4.4 Conduct Of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (a) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification, and (b) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that the failure to give such
notice shall not relieve an indemnifying party of liability except to the extent
it has been prejudiced as a result. Any Person entitled to indemnification
hereunder will have the right to employ separate counsel and to participate in
(but not control) the defense of such claim, but the fees and expenses of such
counsel will be at the expense of such Person and not of the indemnifying party
unless (x) the indemnifying party has agreed to pay such fees or expenses, (y)
the indemnifying party has failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such Person within a reasonable period of
time pursuant to this Agreement, or (z) a conflict of interest exists between
such Person and the indemnifying party with respect to such claims that would
make such separate representation required under applicable ethical rules. In
the case of clause (z) above if the Person notifies the indemnifying party in
writing that such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party will not have the right to assume the
defense of such claim on behalf of such Person. If such defense is not assumed
by the indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). No indemnified party will be required to consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term the giving of a release, by all claimants or plaintiffs, to
such indemnified party from all liability with respect to such claim or
litigation. Any indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel (other than required local counsel) for all parties
indemnified by such indemnifying party with respect to such claim.
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ARTICLE V
OTHER AGREEMENTS
5.1 Restrictions On Public Sale By The Stockholders. If requested by the
managing underwriter of an underwritten Offering, the Stockholders will not
effect any public sale or distribution of securities of the same class (or
securities exchangeable or exercisable for or convertible into securities of the
same class) as the securities included in the Offering (including, but not
limited to, a sale pursuant to Rule 144 of the Securities Act) during the 10-day
period prior to and the 90-day period (or shorter period requested by the
underwriter) beginning on the effective date of, such Offering.
5.2 Rule 144. The Company shall file, on a timely basis, all reports
required to be filed by it under the Securities Act and the Exchange Act, and
will take such further action and provide such documents as the Stockholders may
reasonably request, all to the extent required from time to time to enable the
Stockholders to sell Registrable Securities without registration under the
Securities Act within the limitation of the conditions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, or (ii)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of a Stockholder, the Company will deliver to the Stockholder a
statement verifying that it has complied with such information and requirements.
5.3 Stockholder Representative. (a) The Stockholders agree to appoint one
Stockholder to act as their representative, attorney in fact and proxy with
respect to certain matters specified in this Agreement (the "Stockholder
Representative"). The parties have designated Xxxxxxx X. Xxxxxx as the initial
Stockholder Representative. The Stockholder Representative may resign at any
time, and a Stockholder Representative may be removed at any time by the vote of
Stockholders who collectively own more than 50% of the Registrable Securities at
such time ("Majority Holders"). In the event of the death, resignation or
removal of the Stockholder Representative, a new Stockholder Representative
shall be appointed by a vote of Majority Holders, such appointment to become
effective upon the written acceptance thereof by the new Stockholder
Representative. Any failure by the Majority Holders to appoint a new Stockholder
Representative upon the death, resignation or removal of the Stockholder
Representative shall not have the effect of releasing the Stockholders from any
liability under this Agreement.
(b) The Stockholder Representative shall have such powers and
authority as are necessary to carry out the functions assigned to the
Stockholder Representative under this Agreement; provided, however, that the
Stockholder Representative will have no obligation to act on behalf of the
Stockholders, except as expressly provided herein. The Stockholder
Representative will at all times be entitled to rely on any directions received
from the Majority Holders. The Stockholder Representative shall, at the expense
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of the Stockholders, be entitled to engage such counsel, experts and other
agents and consultants as they shall deem necessary in connection with
exercising their powers and performing their function hereunder and (in the
absence of bad faith on the part of the Stockholder Representative) shall be
entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Stockholder Representative shall not be entitled to any fee,
commission or other compensation for the performance of its services hereunder,
but shall be entitled to the payment of all his or her expenses incurred as the
Stockholder Representative. In connection with this Agreement, and any
instrument, agreement or document relating hereto or thereto, and in exercising
or failing to exercise all or any of the powers conferred upon the Stockholder
Representative hereunder, the Stockholder Representative shall incur no
responsibility whatsoever to any Stockholder by reason of any error in judgment
or other act or omission performed or omitted hereunder or any such other
agreement, instrument or document, excepting only responsibility for any act or
failure to act which represents willful misconduct. Each Stockholder shall
indemnify, pro rata based upon such holder's percentage interest, the
Stockholder Representative against all losses, damages, liabilities, claims,
obligations, costs and expenses, including reasonable attorneys', accountants'
and other experts' or consultant's fees and the amount of any judgment against
the Stockholder Representative, of any nature whatsoever, arising out of or in
connection with any claim, investigation, challenge, action or proceeding or in
connection with any appeal thereof, relating to the acts or omissions of the
Stockholder Representative hereunder. The foregoing indemnification shall not
apply in the event of any action or proceeding which finally adjudicates the
liability of the Stockholder Representative hereunder for his or her gross
negligence or willful misconduct. In the event of any indemnification hereunder,
upon written notice from Stockholder Representative to the Stockholders as to
the existence of a deficiency toward the payment of any such indemnification
amount, each such holder shall promptly deliver to the Stockholder
Representative full payment of his or her ratable share of the amount of such
deficiency, in accordance with such Stockholder's percentage interest. In no
event shall the Company be responsible for any reimbursement or indemnification
of the Stockholder Representative.
(d) All of the indemnities, immunities and powers granted to the
Stockholder Representative under this Agreement shall survive the termination of
this Agreement.
(e) Notwithstanding anything herein to the contrary, each
Stockholder hereby acknowledges that the Company shall not have any
responsibility or obligation whatsoever to any such Stockholder or to any other
party with respect to or arising out of any actions taken or any inaction by the
Stockholder Representative.
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(f) The Company shall have the right to rely conclusively upon all
actions taken or omitted to be taken by the Stockholder Representative pursuant
to this Agreement and any instrument, agreement or document relating hereto, all
of which actions or omissions shall be legally binding upon all the
Stockholders.
ARTICLE VI
MISCELLANEOUS
6.1 Amendments; Waivers. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the Company and the
Stockholder Representative, on the written instruction of the Majority Holders.
6.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to its subject matter, and supersedes and
replaces all prior agreements and understandings of the parties in connection
with such subject matter.
6.3 Notices. All notices and other communications hereunder shall be given
in writing and delivered personally, by registered or certified mail (postage
prepaid, return receipt requested), by overnight courier (postage prepaid),
facsimile transmission or similar means, to the party to receive such notices or
communications at the address set forth below (or such other address as shall
from time to time be designated by such party to the other parties in accordance
with this Section 6.3):
If to the Company: Comverse Technology, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
Telecopy: (000) 000-0000
If to the Stockholder
Representative: Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
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If to a Stockholder: As set forth in Schedule A
All such notices and communications hereunder shall be deemed given when
received, as evidenced by the signed acknowledgment of receipt of the person to
whom such notice or communication shall have been personally delivered, the
acknowledgment of receipt returned to the sender by the applicable postal
authorities, the confirmation of delivery rendered by the applicable overnight
courier service, or the confirmation of a successful facsimile transmission of
such notice or communication. A copy of any notice or other communication given
by any party to any other party hereto, with reference to this Agreement, shall
be given at the same time to the other parties to this Agreement.
6.4 GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS AGREEMENT, AND THE
RESPECTIVE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREUNDER.
6.5 Assignment. No Stockholder may assign any of its rights or obligations
hereunder by operation of law or otherwise without the prior written consent of
the Company.
6.6 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law. If any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.7 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
6.8 No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any Person (whether or not
listed on Schedule A hereto) who or which is not a party hereto. Any Person
(whether or not listed on Schedule A hereto) who or which is not a party hereto
shall not be entitled to any benefit hereunder except, in the case of any Person
listed on Schedule A hereto, such
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Person shall be entitled to become a party hereto by executing a counterpart to
this Agreement. If any Person listed on Schedule A hereto executes a counterpart
to this Agreement, such Person shall thereafter be deemed to have agreed to be
bound by the provisions hereof, as if such Person was an original party hereto
and such Person shall thereafter be entitled to any benefit accorded to the
Stockholders hereunder.
6.9 Headings. The Section headings in this Agreement are for convenience
of reference only and are not intended to be a part of this Agreement or to
affect the meaning or interpretation of this Agreement.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement.
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[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first set forth above.
COMVERSE TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President of Finance and
Treasurer
STOCKHOLDERS:
/s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxxxx
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SCHEDULE A
======================================================================
Number of Shares
issued pursuant to the
Name and Address Merger
----------------------------------------------------------------------
Xx. Xxxxxx Xxxxxxxxxxx 87,500
00 Xxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxxxx 78,750
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------
Mr. Xxxxx Xxxxxxxxxx 43,750
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxx X. Xxxxxx 5,250
00 Xxx Xxx Xxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxx Xxxxxx 875
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx #00X
Xxx Xxxx, XX 00000
----------------------------------------------------------------------
Xxx. Xxx Xxxxxxx 875
00 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxx Xxxxxxx 875
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xx Xxxxxxx 1,750
00 Xxxx 00xx Xxxxxx
Xxxxxxxxx #0X
Xxx Xxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxxx Xxxx 2,261
c/o Mr. Xxxxxx Xxxx
000 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
18
----------------------------------------------------------------------
Xx. Xxxxx Xxxx 1,130
c/o Mr. Xxxxxx Xxxx
000 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------
Ms. Xxxxx Xxxx 1,130
c/o Mr. Xxxxxx Xxxx
000 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxx X. Xxxxxx 653
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxx Xxxxxxx 653
Mecox Road, Xxxxxx Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxx Xxxxxxx 653
0000 Xxxxx Xxxxxx Xxxx, X.X.
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxx X. Xxxxxxxxxx 653
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxxx Xxxxx 653
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxx X. Xxxxxx 653
00 Xxxxx Xx.
Xxxxxxxxxx Xxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxx X. Xxxxxx 653
c/x Xxxxxx & Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxx X. Xxxxxx 653
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxx Xxxxxxxxx 653
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
----------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxx 000
xxxxx Xxxx Xxxxx 0; 0
00000 Xxxxx
Xxxxxxxx, Xxxxx
----------------------------------------------------------------------
Total 230,676
======================================================================
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