Exhibit 4.2
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REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made as of February 18,
2000 by and among Design Automation Systems, Inc., a Texas corporation d/b/a
EpicEdge (the "Company"), Edgewater Private Equity Fund III, L.P., a Delaware
limited partnership ("Edgewater"), Aspen Finance Investors I, LLC, a Colorado
limited liability company ("Aspen"), Xxxxx T.I.M.E. Fund, LP, a Connecticut
limited partnership ("TIME"), Xxxxx Family Partnership II, LP, a Florida limited
partnership ("Xxxxx Family"), LJH Partners LP, a Delaware limited partnership
("LJH"), Wain Investment, LLC, an Ohio limited liability company "Wain"), Xxxxxx
X. Xxxxx, an individual ("Xxxxx"), and Xxxx Xxxx DiJoria, an individual
("DiJoria"; together with Edgewater, Aspen, TIME, Xxxxx Family, LJH, Wain and
Xxxxx are sometimes collectively referred to herein as the "Investors" and
individually as an "Investor").
Pursuant to a Stock Purchase Agreement of even date herewith (the "Purchase
Agreement") by and among the Company and the Investors, the Investors will
purchase shares of the Company's Common Stock, $.01 par value per share (the
"Common Stock"). In order to induce the Investors to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the Closing under the Purchase Agreement. Unless otherwise provided in this
Agreement, capitalized terms used herein shall have the meanings set forth in
paragraph 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. Upon written request by any of the
Investors, which request may not be made until the end of the fifth month after
the date of the Closing under the Purchase Agreement (the "Notice"), the Company
shall (i) file as soon as practicable after receipt of such Notice, but in no
event later than thirty (30) days after the request therefor, a Registration
Statement on Form S-3 (or any successor form) or any other appropriate form
under the Securities Act (the "Demand Registration") covering all of the
Registrable Securities and relating to resale of the Investors' Common Stock,
and (ii) take all necessary actions to cause such registration statement to
become effective within thirty (30) days of filing or as soon thereafter as is
permissible by the Securities Exchange Commission. Each request for a Demand
Registration shall specify that all of the Registrable Securities are requested
to be registered and the anticipated per share price range for such offering.
Within ten (10) days after receipt of any request for a Demand Registration, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and, subject to paragraph 1(b) below, will
include in such registration all Registrable Securities. The holders of
Registrable Securities shall be entitled to request an unlimited number of
Demand Registrations in which the Company will pay all Registration Expenses.
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(b) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing (with a copy to each party hereto requesting registration of Registrable
Securities) that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration, prior to the inclusion
of any securities which are not Registrable Securities, the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering; pro rata among the respective holders thereof on the basis of the
number of shares of Registrable Securities that each holder has requested to be
Registrable Securities included in such registration.
(c) Selection of Underwriters. The Investors and the Company shall
jointly select the investment banker(s) and managing underwriter(s) to
administer an offering initiated as a Demand Registration. It is understood and
agreed that the Company may delay the registration of Registrable Securities
hereunder if such delay is requested in writing by such managing underwriter(s)
or by any managing underwriter(s) jointly selected by the Investors and the
Company with respect to any offering of equity securities by the Company.
(d) Other Registration Rights. The Company will not grant to any
Persons the right to request the Company to register any equity securities of
the Company, or any securities convertible or exchangeable into or exercisable
for such securities, which would be superior to or otherwise interferes with the
Investors' registration rights hereunder; provided, however, the granting by the
Company of registration rights to any other Person which would in any way limit
the Investors' registration rights hereunder shall be subject to the approval of
the Investor Representative (as defined in the Purchase Agreement). The Company
represents and warrants to the Investors that no Person (as defined in the
Purchase Agreement) has the right to register any equity securities of the
Company which are superior to or would otherwise interfere with the Investors'
registration rights hereunder except for the Persons and corresponding number of
shares of Common Stock identified on Schedule A attached hereto and made a part
hereof, whose registration rights are pari passu (but not superior) to those of
the Investors (the registrable equity securities held by such Persons are
referred to herein as the "Equal Securities").
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration or a registration on Form S-4 or Form S-8 or any successor or
similar forms ) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), whether or
not for sale for its own account, the Company will give prompt
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written notice to all holders of Registrable Securities of its intention to
effect such a registration and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after the receipt of the Company's
notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations, whether or not consummated.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, and (ii) second, the
Registrable Securities requested to be included in such registration and the
Equal Securities requested to be included in such registration, pro rata among
the holders of such Registrable Securities and such Equal Securities on the
basis of the number of shares that each holder has requested to be included in
such registration. If, after giving effect to the inclusion in the applicable
registration of the equity securities referred to in clauses (i) and (ii) above,
there are additional equity securities of the Company available to be included
in such registration, the Company shall be entitled to designate the Persons, if
any, it would submit to the managing underwriter(s) for participation in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of the Company or on behalf
of holders of the Company's securities other than holders of Registrable
Securities (subject to Section 1(d) above), and the managing underwriters advise
the Company in writing (with a copy to each party hereto requesting registration
of Registrable Securities) that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the
offering, subject to paragraph 2(e) below, the Company will include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, the Registrable Securities requested to be
included in such registration and the Equal Securities requested to be included
in such registration, pro rata among the holders on the basis of the number of
shares that each holder has requested to be included in such registration, and
(ii) second, other securities requested to be included in such registration, pro
rata among the holders of such securities.
(e) General Priority Rule. Notwithstanding anything contained in this
Agreement to the contrary, no holder of shares of any class of capital stock of
the Company (other than holders of Equal Securities) shall be entitled to have
their shares included in any Piggyback Registration if such inclusion shall
reduce the number of shares includable by holders of Registrable Securities in
such registration.
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(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least three (3) months has elapsed from the
effective date of such previous registration.
(g) Company Election. Nothing contained herein shall restrict the
Company from filing and causing a registration statement to become effective
with respect to the Registrable Securities at any time.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144 adopted by the
Securities and Exchange Commission under the Securities Act (as such rule may be
amended from time to time) ("Rule 144")) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and the 90-
day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of any
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree or require.
(b) Notwithstanding the provisions of Section 3(a) above, it is
understood and agreed that any holder of Registrable Securities may from time to
time transfer or recertificate all or a part of such holder's Registrable
Securities (i) to a nominee identified in writing to the Company as being the
nominee of or for such holder, and any nominee of or for a beneficial owner of
Registrable Securities identified in writing to the Company as being the nominee
of or for such beneficial owner may from time to time transfer or recertificate
all or a part of the Registrable Securities registered in the name of such
nominee but held as nominee on behalf of such beneficial owner, to such
beneficial owner, (ii) to an Affiliate (as such term is defined in the Purchase
Agreement) of such holder, or (iii) if such holder of Registrable Securities is
a partnership or the nominee of a partnership, to a partner, retired partner, or
estate of a partner or retired partner, of such partnership, so long as such
transfer or recertification is in accordance with the transferee's interest in
such partnership and is without consideration. The transfers or recertifications
described in this Section 3(b) are sometimes referred to herein collectively as
"Permitted Transfers" and the recipient of Registrable Securities in a Permitted
Transfer is sometimes referred to herein as a "Permitted Transferee".
(c) Except as specifically set forth in this Agreement, the Company
agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven (7) days prior to and during the 120-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
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registration or pursuant to registrations on Form S-4 or Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each holder of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock,
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and
thereafter use its best efforts and take all necessary action to cause such
registration statement to become effective within thirty (30) days of filing or
as soon thereafter (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish to
the counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed, which documents will be subject to the review and approval of such
counsel) and the Company will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto, including documents
incorporated by reference, to which the holders of a majority of Registrable
Securities covered by such registration statement shall reasonably object;
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective until such time as each holder of Registrable Shares can
freely trade such Registrable Shares without restriction under the Federal
securities laws including, but not limited to, the Securities Act; (c) furnish
to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(c) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller of Registrable
Securities to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided, that the Company will not
be required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii)
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consent to general service of process in any such jurisdiction);
(d) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(e) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(f) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(g) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(h) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, any attorney, accountant or other agent retained by any
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(j) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
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reasonable judgment of such holder and its counsel should be included;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain a comfort letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request; and
(m) provide a legal opinion of the Company's outside counsel
addressed to each holder of Registrable Securities included in such
registration, dated the effective date of such registration statement (and, if
such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included
therein (including the preliminary prospectus) and such other documents relating
thereto in customary form and covering such matters of the type customarily
covered by legal opinions of such nature.
5. Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding underwriting discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), will be borne by the Company, exclusive
of underwriting discounts and commissions or fees of counsel of the sellers of
Registrable Securities.
6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Securities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or
several, to which such holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained (A) in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or (B) in any application or other document or communication (in this
paragraph 6 collectively called an "application") executed by or on behalf of
the Company or based upon written information furnished by or on behalf of the
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Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration statement under the "blue sky" or securities laws thereof, or
(ii) any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company will reimburse such holder and each such director, officer and
controlling person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the prospectus or any
amendments or supplements thereto after the Company has furnished such holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages or liabilities, to which such holder or any such director or officer or
controlling person may become subject under the Securities Act or otherwise, to
the extent that such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) result from
(i) any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or in any application or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein
and only to the extent such untrue statement or omission is made knowingly or
recklessly by such holder, and such holder will reimburse the Company and each
such director, officer and controlling Person for any legal or any other
expenses incurred by them in connection with investigating or defending any such
loss, claim, liability, action or proceeding; provided, however, that the
obligation to indemnify will be individual to each holder and will be limited to
the net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt
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written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided the indemnified party may participate in such
defense at such party's expense. If such defense is assumed, the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably
withheld). An 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 for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations.
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(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s)), except that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration, and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder and
such holder's intended method of distribution; and provided further that nothing
contained in paragraph 7(a) or 7(b) shall alter the rights of any holder of
Equal Securities pursuant to any registration or similar agreement with the
Company.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in
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paragraph 4(b) during which a Registration Statement is to remain effective
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to this paragraph 7(b) to and
including the date when each seller of a Registrable Security covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will file all reports required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
9. Definitions.
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"Registrable Securities" means (i) any Common Stock owned or held by the
Investors or their Permitted Transferees, and (ii) any Common Stock issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) by way of stock dividend, stock conversion or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular shares constituting Registrable
Securities, such shares will cease to be Registrable Securities when they have
been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act. For purpose of this
Agreement, a Person will be deemed to be the holder of Registrable Securities
whenever such person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
10. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would adversely
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affect the ability of the holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement
or which would adversely affect the marketability of such Registrable Securities
in any such registration (including, without limitation, effecting a stock split
or a combination of shares).
(c) Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto shall have the right to injunctive relief,
in addition to all of its other rights and remedies at law or in equity, to
enforce the provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the Registrable
Securities.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns and Permitted Transferees. Notwithstanding the
foregoing, the rights of the holders of any Registrable Securities (or any
portion thereof) set forth herein shall inure only to the benefit of the holders
of any Registrable Securities (or any portion thereof) and their Permitted
Transferees (of all or any portion of the Registrable Securities), subject to
the provisions respecting the minimum numbers or percentages of shares of
Registrable Securities (or of such portion thereof) required in order to be
entitled to certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement. One or more counterparts of this Agreement may be delivered by
facsimile, with the intention that delivery by such means shall have the same
effect as delivery of an original counterpart thereof.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. All issues concerning this Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision of rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of Illinois.
(j) Notices. Any and all notices or other communications required or
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permitted to be delivered hereunder shall be deemed properly delivered if (a)
delivered personally, (b) mailed by first class, registered or certified mail,
return receipt requested, postage prepaid, (c) sent by next-day or overnight
mail or delivery or (d) sent by telecopy or telegram, to the parties as set
forth below:
If to Edgewater: If to Xxxxx Family:
Edgewater Private Equity Fund III, X.X. Xxxxx Family Partnership II, LP
000 X. Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx, Xxxxx 000
00xx Xxxxx Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000 Attn: Xxxxxxx Xxxxx
Attn: Xxxxx Xxxxxxxx, Partner Telecopy: (000) 000-0000
Telecopy: 000-000-0000
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With a copy to: If to Xxxxx:
Xxxxxxx X. Xxxxxxxx, Esq. Xxxxxx X. Xxxxx
Xxxxxx, Price, Xxxxxxx & Kammholz P.O. Box 3454 D
000 Xxxxx XxXxxxx Xxxxxx Xxx Xxxxx, Xxxxxx 00000
Suite 2600 Telecopy: (000) 000-0000
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000 If to DiJorio:
Xxxx Xxxx XxXxxxx
If to Aspen: X.X. Xxx 0000X
Aspen Finance Investors I, LLC Xxx Xxxxx, Xxxxxx 00000
000 Xxx Xxx Xxxxx, Xxxxx 000 Telecopy: (000) 000-0000
Xxxxxx, XX 00000
Attn: If to LJH:
Telecopy: LHJ Partners LP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
If to TIME: Attn: Xxxx Xxxx
Xxxxx T.I.M.E. Fund, LP Xxx Xxxx, XX 00000
000 Xxxxxxxxx Xxxxxx Telecopy: (000) 000-0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx If to Wain:
Telecopy: (000) 000-0000 Wain Investment, LLC
Tower East, Suite 600
000000 Xxxxxxx Xxxx.
Xxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx, c/o Xxx Xxxxxx
Telecopy: (000) 000-0000
If to the Company:
Design Automation Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxxxx, President
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx, Esq.
Fox, Rothschild, O'Brien & Xxxxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Either party may change the name and address of the designee to whom notice
shall be sent by
13
giving written notice of such change to the other party.
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IN WITNESS WHEREOF, the parties have executed this Registration Agreement
as of the date first written above.
Design Automation Systems, Inc. LJH PARTNERS LP, a Delaware limited
(d/b/a EpicEdge), a Texas corporation partnership
By: /s/ Xxxxxxx X. Xxxxxx, Xx. By: Xxxxxx Partners, LLC
------------------------------------
Its: President Its: General Partner
Edgewater Private Equity Fund III, L.P. By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Its: Managing Member
By: Edgewater III Management, L.P.
Its: General Partner WAIN INVESTMENT, LLC, an Ohio
limited liability company
By: Xxxxxx Management, Inc. By: /s/ Xxxxxx Xxxx
--------------------------------
Its: General Partner Its: Managing Partner
-------------------------------
By: /s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------ -------------------------------
Its: President Xxxxxx X. Xxxxx
ASPEN FINANCE INVESTORS I, LLC, a /s/ Xxxx Xxxx DiJoria
-------------------------------
Colorado limited liability company Xxxx Xxxx DiJoria
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Its: Manager
XXXXX T.I.M.E. FUND, LP, a Connecticut
limited partnership
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Its: Managing Partner
XXXXX FAMILY PARTNERSHIP II, LP, a
Florida limited partnership
By: /s/ Xxxxx Xxxxx
------------------------------------
Its: Managing Partner
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