EXHIBIT 4.1
XXXXXX CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into as
of the 4th day of June 2002, by and among XXXXXX CORPORATION, a Delaware
corporation (the "COMPANY"), and each stockholder of Celiant Corporation, a
Delaware corporation ("CELIANT"), listed on the signature pages hereto (each, a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
RECITALS
A. The Company, Celiant and Ptolemy Acquisition Co., a Delaware
corporation ("SUB"), have entered into an Agreement and Plan of Merger (the
"MERGER AGREEMENT"), dated February 18, 2002, pursuant to which Celiant will be
merged (the "MERGER") with and into Sub and the shares of capital stock of
Celiant held by the Stockholders will be converted into cash and Common Stock.
B. It is a condition to Celiant's obligation to consummate the Merger
Agreement that the Company enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, covenants and
conditions set forth in this Agreement, the parties mutually agree as follows:
SECTION 1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"COMMON STOCK" means the common stock, $0.01 par value, of
the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC which permits inclusion
or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
"HOLDER" means any Person owning of record Registrable
Securities that have not been sold to the public or any assignee of
record of such Registrable Securities
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in accordance with Section 2.8 hereof, including without limitation the
Stockholders and their respective permitted successors and assigns.
"PERSON" means any individual, trust, corporation,
partnership, limited partnership, limited liability company or other
business association or entity, court, governmental body or
governmental agency.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act, and the declaration or ordering
of effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means Common Stock issued to the
Stockholders in connection with the Merger.
"REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in complying with Sections 2.1, 2.2 and 2.3 hereof,
including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company,
Blue Sky fees and expenses, the expense of any auditor letter and any
special audits incident to or required by any such registration, but
shall specifically exclude Selling Expenses.
"RULE 144" means Rule 144 promulgated under the Securities Act
as in effect on the date hereof or any successor rule or regulation
under the Securities Act subsequently adopted by the SEC.
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to any sale hereunder and all fees and
expenses of legal counsel to the Holders.
SECTION 2. REGISTRATION
2.1 REQUIRED REGISTRATION.
(a) REGISTRATION STATEMENT. The Company shall use its reasonable best
efforts to prepare and file as promptly as practicable after the Effective Time
(as defined in the Merger Agreement) with the SEC a registration statement on
Form S-3 with respect to the Registrable Securities (the "REGISTRATION
STATEMENT") and to effect all such registrations, qualifications and compliances
(including, without limitation, obtaining appropriate qualifications under
applicable state securities or "blue sky" laws and compliance with any other
applicable governmental requirements or regulations) as any Holder may
reasonably request and that would permit or facilitate the sale of Registrable
Securities in the open market (provided, however, that the Company shall not be
required in connection therewith to qualify to do business or to file a
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general consent to service of process in any such state or jurisdiction), and
shall use its reasonable best efforts so that such Registration Statement and
all other such registrations, qualifications and compliances may become
effective no later than ninety (90) days following the Effective Time.
Notwithstanding the foregoing, the Company shall not be obligated to effect an
underwritten registration statement.
(b) EFFECTIVENESS, SUSPENSION RIGHT.
(i) The Company will use its reasonable best efforts to maintain the
effectiveness of the Registration Statement and other applicable registrations,
qualifications and compliances for up to two (2) years from the Effective Time
(the "REGISTRATION EFFECTIVE PERIOD"), and from time to time will amend or
supplement the Registration Statement and the prospectus contained therein as
and to the extent necessary to comply with the Securities Act, the Exchange Act
and any applicable state securities statute or regulation, subject to the
following limitations and qualifications.
(ii) Following the date on which the Registration Statement is first
declared effective, the Holders will be permitted (subject in all cases to
Section 2.2 below) to offer and sell Registrable Securities during the
Registration Effective Period in the manner described in the Registration
Statement, provided that the Registration Statement remains effective and has
not been suspended, and provided further that until the first anniversary of the
Effective Time, no Holder shall be permitted to sell Registrable Securities in
excess of the number of Registrable Securities that such Holder would be
entitled to sell under subsection (e) of Rule 144 if the Registrable Securities
were "restricted securities" as defined in Rule 144 (assuming for such purpose
(and for the avoidance of doubt) that one year has elapsed since the Effective
Time and accordingly the volume requirements under subsection (e) of Rule 144
are immediately applicable to the Holders). No such volume limitation shall
apply to any Holder after the first anniversary of the Effective Time;
(iii) Notwithstanding any other provision of this Section 2.1 but
subject to Section 2.2, the Company shall have the right at any time (but only
five times during the term of this Agreement and no more than three times in any
twelve-month period) to require that all Holders suspend further open market
offers and sales of Registrable Securities whenever, and only if, in the
reasonable good faith judgment of the Company after receipt of advice from
outside counsel there is or there is reasonably likely to be in existence
material undisclosed information or events with respect to the Company (the
"SUSPENSION RIGHT"). In the event the Company exercises the Suspension Right,
such suspension will continue only for the period of time reasonably necessary
for disclosure to occur at a time that is not detrimental to the Company or its
stockholders or until such time as the information or event is no longer
material (but in no event more than 30 days), each as determined in good faith
by the Company after receipt of advice from outside counsel. The Company will
promptly give the Holders notice of any such suspension and will use all
reasonable efforts to minimize the length of the suspension.
2.2 PROCEDURE FOR SALE OF SHARES UNDER REGISTRATION STATEMENT.
(a) DELIVERY OF PROSPECTUS. For any offer or sale of any of the
Registrable Securities
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by a Holder in a transaction that is not exempt under the Securities Act, the
Holder, in addition to complying with any other federal securities laws, shall
deliver a copy of the final prospectus (or amendment of or supplement to such
prospectus) of the Company covering the Registrable Securities in the form
furnished to the Holder by the Company to the purchaser of any of the
Registrable Securities on or before the settlement date for the purchase of such
Registrable Securities.
(b) COPIES OF PROSPECTUSES. The Company shall furnish to each Holder a
reasonable number of copies of the final prospectus (or amendment of or
supplement to such prospectus) of the Company covering the Registrable
Securities as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not as of the
date of delivery to the Holder include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or incomplete in the light of the
circumstances then existing, in each case exclusive of information supplied by
such Holder expressly for inclusion in the Registration Statement.
2.3 PIGGYBACK REGISTRATIONS.
(a) The Company shall notify all Holders in writing at least
thirty (30) days prior to the filing of any registration statement
under the Securities Act for purposes of a public offering of
securities of the Company (including, but not limited to, registration
statements relating to offerings of securities of the Company for the
account of stockholders of the Company, but excluding the Registration
Statement and registration statements on Forms S-4 and S-8) and will
offer to include in such registration statement all of such Registrable
Securities held by such Holder. If the registration statement under
which the Company gives notice under this Section 2.3 is for an
underwritten offering, the Company shall so advise the Holders in such
notice. Each Holder desiring to include in any such registration
statement all or any part of the Registrable Securities held by it
shall, within fifteen (15) days after receipt of the above-described
notice from the Company, so notify the Company in writing, provided
that until the first anniversary of the Effective Time, no Holder shall
be permitted to sell Registrable Securities in excess of the number of
Registrable Securities that such Holder would be entitled to sell under
subsection (e) of Rule 144 if the Registrable Securities were
"restricted securities" as defined in Rule 144 (assuming for such
purpose (and for the avoidance of doubt) that one year has elapsed
since the Effective Time and accordingly the volume requirements under
subsection (e) of Rule 144 are immediately applicable to the Holders).
No such volume limitation shall apply to any Holder after the first
anniversary of the Effective Time. If a Holder decides not to include
all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
(b) If the registration statement under which the Company
gives notice under this Section 2.3 is for an underwritten offering,
and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration (i) creates a substantial risk that the price per share in
such
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registration will be materially and adversely affected, or (ii) exceeds
the number which can be reasonably sold in such offering, then the
number of shares that may be included in the underwriting shall be
allocated, first, to the Company if the Company, and not a stockholder,
initiated the filing of the registration statement; second, to the
Holders on a pro rata basis based on the total number of Registrable
Securities held by the Holders desiring to participate in the
registration and underwriting pursuant to the terms of this Section
2.3; and third, to any other stockholder of the Company participating
in such underwritten offering on a pro rata basis based on the number
of shares that all such stockholders desire to register.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it
under this Section 2.3 prior to the effectiveness of such registration
whether or not any Holder has elected to include Registrable Securities
in such registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with Section
2.4 hereof.
2.4 EXPENSES OF REGISTRATION. Except as provided herein, all
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.1 or any registration under
Section 2.3 herein shall be borne by the Company. All Selling Expenses incurred
in connection with any registrations hereunder shall be borne by the holders of
the securities so registered pro rata on the basis of the number of shares so
registered.
2.5 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect upon
the second anniversary of the Effective Time.
2.6 DELAY OF REGISTRATION; FURNISHING INFORMATION. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to Section 2.1 or 2.3 that the selling Holders shall furnish to the
Company such information regarding themselves, the Registrable Securities held
by them and the intended method of disposition of such securities as reasonably
shall be required to effect the registration of their Registrable Securities.
2.7 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 2.1 or 2.3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, members, officers and
directors of each Holder, any underwriter (as defined in the Securities
Act) and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations
(collectively a "VIOLATION") by the Company: (i) any untrue statement
or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or
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supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange
Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law
in connection with the offering covered by such registration statement;
and the Company will promptly reimburse to each such Holder, partner,
member, officer, director, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED HOWEVER, that the indemnity agreement contained in
this Section 2.7(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent
that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with information furnished expressly
for use in connection with such registration by such Holder, partner,
member, officer, director, underwriter or controlling person of such
Holder.
(b) To the extent permitted by law, each Holder severally and
not jointly will, if Registrable Securities held by such Holder are
included in the securities as to which such registration is being
effected, indemnify and hold harmless the Company, each of its
directors, its officers and each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter and
any other Holder selling securities under such registration statement
or any of such other Holder's partners, members, directors or officers
or any person who controls such Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any
such director, officer, controlling person, underwriter or other such
Holder, or partner, member, director, officer or controlling person of
such other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with information furnished by such Holder to the Company
expressly for use in connection with such registration; and each such
Holder will promptly reimburse to the Company or any such director,
officer, controlling person, underwriter or other Holder, or partner,
member, officer, director or controlling person of such other Holder
any legal or other expenses reasonably incurred by such party in
connection with investigating or defending any such loss, claim,
damage, liability or action if it is judicially determined that there
was such a Violation; provided, however, that the indemnity agreement
contained in this Section 2.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided further, that in no event
shall any indemnity under this Section 2.7 exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.7 of notice of the commencement of any action (including any
governmental action), such
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indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 2.7, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying
party, if, upon written advice of counsel, representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. If an indemnified party fails to deliver
written notice to the indemnifying party within a reasonable time after
the indemnified party's receipt of notice of the commencement of any
such action, the indemnifying party's liability under this Section 2.7
shall be reduced to the extent such failure to notify was prejudicial
to the indemnifying party's ability to defend such action, but the
omission to so deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 2.7.
(d) If the indemnification provided for in this Section 2.7 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or
liabilities referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall to the extent
permitted by applicable law contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in
such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission; PROVIDED, that in no event shall any contribution by a Holder
hereunder exceed the net proceeds from the offering received by such
Holder.
(e) The obligations of the Company and Holders under this
Section 2.7 shall survive completion of any offering of Registrable
Securities in a registration statement and the termination of this
Agreement. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party,
consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a complete release
from all liability in respect to such claim or litigation without any
admission of guilt or wrongdoing.
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2.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee of Registrable Securities that is: (a) the estate of
such Holder, or the spouse, siblings or lineal descendants of such Holder, or
such Holder's spouse's siblings or lineal descendants or trusts for the benefit
of any of the foregoing; (b) a stockholder, partner, retired partner who retires
after the date hereof, limited partner, retired limited partner who retires
after the date hereof, member, or retired member who retires after the date
hereof of such Holder; (c) a corporation, partnership, limited liability
company, joint venture, trust or individual who or which, directly or indirectly
through one or more intermediaries, is controlled by or under common control
with such Holder or which controls, directly or indirectly through one or more
intermediaries, such Holder; (d) a trust for the benefit of, or partnership,
corporation, limited liability company or other entity owned or controlled by,
any of the foregoing; or (e) any other transferee of all, but not less than all,
of such Holder's Registrable Securities; PROVIDED, HOWEVER, (i) the transferor
shall, within ten (10) days after such transfer, furnish to the Company written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned and (ii) such
transferee shall agree to become a party to and be subject to all restrictions
set forth in this Agreement. For purposes of this Section 2.8, the terms
"CONTROL", "CONTROLLED" and "COMMON CONTROL WITH" mean the ability, whether by
the direct or indirect ownership of voting securities or other equity interest,
by contract or otherwise, to elect a majority of the directors of a corporation,
to select the managing or general partner of a partnership or limited
partnership, respectively, or otherwise to select a majority of those persons
exercising governing authority over an entity. Notwithstanding the foregoing and
for the avoidance of doubt, a pledge, collateral assignment or other similar
arrangement shall not be restricted under this Agreement in any manner and
neither the Holder nor the secured party (or creditor) party to such pledge,
collateral assignment or other similar arrangement shall be required to comply
with the provisions of the immediately preceding proviso in the absence of a
foreclosure or other realization of collateral with respect to such pledge,
collateral assignment or other similar arrangement.
2.9 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, at all
times the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(c) furnish to each Holder promptly upon request a written statement by
the Company as to its compliance with the reporting requirements of such Rule
144 and of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as such holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such holder to sell any
Registrable Securities without registration.
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2.10 REPRESENTATION AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by; all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, Certificate of Incorporation of the Company or By-laws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the provisions of Section 2.7
may be deemed to conflict with public policy.
SECTION 3. MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
3.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto; provided, however, that prior to the receipt by the Company of
written notice of the transfer of any Registrable Securities specifying the full
name and address of the transferee, the Company may deem and treat the person
listed as the holder of such shares in its records as the absolute owner and
holder of such shares for all purposes, including the payment of dividends or
any redemption price.
3.3 ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement) constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof and no party shall be liable or
bound to any other in any manner by any representations, warranties, covenants
and agreements except as specifically set forth herein and therein.
3.4 SEVERABILITY. In case any provision of the 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.
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3.5 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and the Holders of at least two-thirds
(66 2/3%) of the Registrable Securities.
(b) The obligations of the Company and the rights of the
Holders under this Agreement may be waived only with the written
consent of the Holders of at least sixty-six and two-thirds percent
(66 2/3%) of the Registrable Securities.
3.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
3.7 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient; if not, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the party to be
notified at the address or facsimile number as set forth on the signature pages
hereof or at such other address or facsimile number as such party may designate
by ten (10) days advance written notice to the other parties hereto.
3.8 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.10 AGGREGATION OF STOCK. All of the Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
STOCKHOLDERS:
XXXXXX CORPORATION PEQUOT PRIVATE EQUITY FUND III, L.P.
By: Pequot Capital Management, Inc.,
By: /s/ F. L. ENGLISH its Investment Manager
Title: Chairman and CEO
Address: 00000 Xxxx 000xx Xxxxxx By: /s/ XXXXX X. X'XXXXX
Xxxxxx Xxxx, Xxxxxxxx 00000 Name: Xxxxx X. X'Xxxxx
Attention: Xxxxx X. English Title: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000 Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital
Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
PEQUOT OFFSHORE PRIVATE EQUITY
PARTNERS III, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ XXXXX X. X'XXXXX
Name: Xxxxx X. X'Xxxxx
Title: General Counsel
Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital
Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
PEQUOT ENDOWMENT FUND, L.P.
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By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ XXXXX X. X'XXXXX
Name: Xxxxx X. X'Xxxxx
Title: General Counsel
Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital
Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
NV PARTNERS II LP
By: New Venture Partners LLC,
its General Partner
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Managing Partner
Address: c/o Xxxxxx Xxxxxx
Xxxx Xxxxxx
New Venture
Partners LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: 000-000-0000
XXXX X. XXXX
/s/ XXXX X. XXXX
------------------------------------
Xxxx X. Xxxx
Address: c/o Credit Suisse First
Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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