REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
Execution
Copy
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as
of July 16, 2010, is by and among VocalTec Communications Ltd., a company
organized under the laws of the State of Israel, (the “Company”), and Xxxxxx
Xxxxxxxx (the “Stockholder”).
Certain terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Merger Agreement. The parties hereto
hereby agree that this Agreement shall become effective immediately prior to the
execution of, and subject to consummation of the transactions contemplated by,
the Merger Agreement (as defined below).
WHEREAS, the Stockholder
currently holds shares of common stock of YMax Corporation, a Delaware
corporation (“YMax”);
WHEREAS, immediately following
the execution of this Agreement, the Company, VocalTec Merger Sub Inc., a
Delaware corporation and wholly-owned subsidiary of the Company, and YMax shall
enter into that certain Agreement and Plan of Merger, dated as of the date
hereof (the “Merger
Agreement”), and pursuant to the terms and conditions of the Merger
Agreement, the common stock held by the Stockholder shall be exchanged for
ordinary shares of the Company (the “New Shares”) as set
forth in the Merger Agreement; and
WHEREAS, the Company has
agreed to provide certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the “Securities Act”), and
applicable state securities laws, to the Stockholder with respect to the
Registrable Securities as defined below.
NOW, THEREFORE, in
consideration of the premises, the representations, warranties, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the parties hereto agree as follows:
1. DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
a. “Business Day” means
any weekday that is not a day on which banking institutions in the City of New
York are authorized or obligated to close.
b. “Immediate Family”
means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law, including any adoptive relationships, of a
natural person.
c. “Register,” “registered,” and
“registration”
refer to a registration effected by preparing and filing one or more
registration statements of the Company on Form F-3 (or any successor form) in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a continuous
basis (“Rule
415”), and the declaration or ordering of effectiveness of such
registration statement(s) by the United States Securities and Exchange
Commission (the “SEC”).
d.
“Registrable
Securities” means the New Shares held by the Stockholder immediately
following the execution of the Merger Agreement as set forth on the signature
page to this Agreement, including any shares issued or issuable upon any stock
split, dividend or other distribution, recapitalization or other similar event
consummated in connection with, or at any time following, the transactions
contemplated under the Merger Agreement.
e. “Registration
Statement” means the registration statement on Form F-3 (or any successor
form) of the Company covering only the Registrable Securities.
f.
“Stockholder” means
the Stockholder, any transferee or assignee thereof to whom the Stockholder
assigns its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 and any transferee or
assignee thereof to whom a transferee or assignee assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 9.
2. REGISTRATION.
a. Mandatory
Registration. Upon the terms and subject to the conditions set
forth in this Agreement, the Company shall file with the SEC within sixty (60)
calendar days of the date of this Agreement a Registration
Statement. The Registration Statement shall register only the
Registrable Securities and no other securities of the Company. The
Stockholder and his counsel shall have a reasonable opportunity to review and
comment upon such registration statement or amendment to such registration
statement and any related prospectus prior to its filing with the
SEC. The Stockholder shall furnish all information reasonably
requested by the Company for inclusion therein. The Company shall use
its reasonable best efforts to have the Registration Statement or amendment
declared effective by the SEC at the earliest possible date following the filing
thereof. The Company shall use reasonable best efforts to keep the
Registration Statement effective pursuant to Rule 415 promulgated under the
Securities Act (or any successor rule providing for offering securities on a
continuous basis) and available for sales of all of the Registrable Securities
at all times until the earlier of (i) the date as of which the Stockholder may
sell all of the Registrable Securities without restriction pursuant Rule 144
promulgated under the Securities Act (or successor thereto) or (ii) the date on
which the Stockholder shall have sold all the Registrable Securities owned by
him (the “Registration
Period”). Each of the Company and the Stockholder hereby
undertakes and agrees (each with respect to the information provided by such
party to be included in the Registration Statement) that the Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any 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, in light of the circumstances in which they were
made, not misleading.
b. Rule 424
Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC, pursuant to Rule
424 promulgated under the Securities Act, the prospectus and prospectus
supplements, if any, to be used in connection with sales of the Registrable
Securities under the Registration Statement. The Stockholder and his
counsel shall have a reasonable opportunity to review and comment upon such
prospectus prior to its filing with the SEC.
c. Deferral or Suspension
During a Blackout Period. Notwithstanding the provisions of
Section 2(a), if in the good faith judgment of the Company, following
consultation with legal counsel, it would be detrimental to the Company or its
stockholders for the Registration Statement to be filed or for resales of
Registrable Securities to be made pursuant to the Registration Statement due to
(i) the existence of a material development or potential material
development involving the Company that the Company would be obligated to
disclose or incorporate by reference in the Registration Statement and which the
Company has not disclosed, or which disclosure would be premature or otherwise
inadvisable at such time or would have a material adverse effect on the Company
or its stockholders, or (ii) the filing of (or an intention to
promptly file) a Company-initiated registration of any class of its equity
securities, which, in the good faith judgment of the Company, the Registration
Statement would adversely affect, the Company shall have the right to
(A) immediately defer such filing for a period of not more than ninety
(90) days beyond the date by which such Registration Statement was
otherwise required hereunder to be filed or (B) suspend use of such
Registration Statement for a period of not more than thirty (30) days (any
such deferral or suspension period, a “Blackout
Period”). The Stockholder acknowledges that it would be detrimental
to the Company and its stockholders for such Registration Statement to be filed
(or remain in effect) during a Blackout Period and therefore essential to defer
such filing (or suspend the use thereof) during such Blackout Period and agrees
to cease any disposition of the Registrable Securities during such Blackout
Period. The Company may not utilize any of its rights under this
Section 2(c) to defer the filing of a Registration Statement (or suspend
its effectiveness) more than once in any twelve (12) month
period.
3. RELATED
OBLIGATIONS.
With
respect to the Registration Statement and whenever any Registrable Securities
are to be registered pursuant to Section 2(a), the Company shall use its
reasonable best efforts to effect the registration of the Registrable Securities
in accordance with the intended method of disposition thereof and, pursuant
thereto, the Company shall have the following obligations:
a. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to any registration statement and the
prospectus used in connection with such registration statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may
be necessary to keep the Registration Statement effective at all times during
the Registration Period, and, during such period, comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement until such time as all of
such Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in
such Registration Statement.
b. The
Company shall permit the Stockholder to review and comment upon the Registration
Statement and all amendments and supplements thereto at least two (2) Business
Days prior to their filing with the SEC, and not file any document in a form to
which the Stockholder reasonably objects. The Stockholder shall use
his reasonable best efforts to comment upon the Registration Statement and any
amendments or supplements thereto within two (2) Business Days from the date the
Stockholder receives the final version thereof. The Company
shall furnish to the Stockholder, without charge, any correspondence from the
SEC or the staff of the SEC to the Company or its representatives, relating to
the Registration Statement.
c. Upon
request of the Stockholder, the Company shall furnish to the Stockholder, (i)
promptly after the same is prepared and filed with the SEC, at least one copy of
such registration statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits, (ii) upon the effectiveness of any registration statement, a copy
of the prospectus included in such registration statement and all amendments and
supplements thereto (or such other number of copies as the Stockholder may
reasonably request) and (iii) such other documents, including copies of any
preliminary or final prospectus, (which final prospectus the Company shall
electronically file with the SEC within two days from effectiveness of any such
registration statement) as the Stockholder may reasonably request from time to
time in order to facilitate the disposition of the Registrable Securities owned
by the Stockholder.
d. The
Company shall use reasonable best efforts to (i) register and qualify the
Registrable Securities covered by a registration statement under such other
securities or “blue sky” laws of such jurisdictions in the United States as the
Stockholder reasonably requests, (ii) prepare and file in those jurisdictions,
the amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to (x)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify
the Stockholder of the receipt by the Company of any notification with respect
to the suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or “blue sky” laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
e. As
promptly as practicable after becoming aware of such event or facts, the Company
shall notify the Stockholder in writing of the happening of any event or
existence of such facts as a result of which the prospectus included in any
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and promptly prepare a supplement or
amendment to such registration statement to correct such untrue statement or
omission, and deliver a copy of such supplement or amendment to the Stockholder
(or such other number of copies as the Stockholder may reasonably
request). The Company shall also promptly notify the Stockholder in
writing (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a registration statement or any
post-effective amendment has become effective, (ii) of any request by the SEC
for amendments or supplements to any registration statement or related
prospectus or related information, and (iii) of the Company's reasonable
determination that a post-effective amendment to a registration statement would
be appropriate.
f.
The Company shall
use its reasonable best efforts to prevent the issuance of any stop order or
other Suspension (as defined below) and, if such an order is issued or in any
other event of Suspension, to obtain the withdrawal of such order or to cause
the use of the prospectus so suspended to be resumed as soon as possible, and to
notify the Stockholder of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
g. The
Company shall use its reasonable best efforts to cause all the Registrable
Securities to be listed on each securities exchange on which securities of the
same class or series issued by the Company are then listed, if any, if the
listing of such Registrable Securities is then permitted under the rules of such
exchange. The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section.
h. The
Company shall at all times provide a transfer agent and registrar with respect
to its Common Stock.
i.
If reasonably requested by the Stockholder,
the Company shall: (i) immediately incorporate in a prospectus supplement or
post-effective amendment such information as the Stockholder reasonably believes
should be included therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold, the purchase price being paid
therefor and any other terms of the offering of the Registrable Securities; (ii)
make all required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and (iii) supplement or make
amendments to any registration statement.
j.
The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by any registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities in
accordance with the Registration Statement.
k.
Within one (1) Business Day after any registration
statement which includes the Registrable Securities is ordered effective by the
SEC, the Company shall deliver to the transfer agent for such Registrable
Securities (with copies to the Stockholder) confirmation that such registration
statement has been declared effective by the SEC. Thereafter, if
reasonably requested by the Stockholder at any time, the Company shall deliver
to the Stockholder a written confirmation whether or not the effectiveness of
such registration statement has lapsed at any time for any reason (including,
without limitation, the issuance of a stop order) and whether or not the
registration statement is current and available to the Stockholder for sale of
all of the Registrable Securities.
l.
In the event of any underwritten public offering
of the Registrable Securities, the Company shall enter into an underwriting
agreement with the managing underwriter of such offering, in usual and customary
form, which agreement may include the indemnification of the underwriters by the
Company, and shall perform its obligations thereunder.
m.
The Company shall take all other reasonable actions necessary
to expedite and facilitate disposition by the Stockholder of Registrable
Securities pursuant to any registration statement.
4. OBLIGATIONS OF THE
STOCKHOLDER.
a. The
Company shall notify the Stockholder in writing of the information the Company
reasonably requires from the Stockholder in connection with any registration
statement hereunder. The Stockholder shall furnish to the Company
such information regarding himself, the Registrable Securities held by him and
the intended method of disposition of the Registrable Securities held by him as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request.
b.
The Stockholder agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement
hereunder.
c. In
the event of: (i) any request by the SEC or any other federal or state
governmental authority during the Registration Period for amendments or
supplements to a registration statement or related prospectus or for additional
information, (ii) the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
registration statement or the initiation of any proceedings for that purpose,
(iii) 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 of any
proceeding for such purpose, or (iv) any event or circumstance which
necessitates the making of any changes in the registration statement or
prospectus, or any document incorporated or deemed to be incorporated therein by
reference, so that, in the case of the registration statement, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, then the Company shall deliver a certificate in writing to the
Stockholder (the “Suspension Notice”)
to the effect of the foregoing (which notice will not disclose the content of
any material non-public information and will indicate the date of the beginning
and end of the intended period of suspension, if known), and, upon receipt of
such Suspension Notice, the Stockholder will discontinue disposition of
Registrable Securities covered by the registration statement or prospectus (a
“Suspension”)
until receipt of copies of a supplemented or amended prospectus prepared and
filed by the Company, or until the Stockholder is advised in writing by the
Company that the current prospectus may be used, and have received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such prospectus.
d.
The Stockholder covenants:
(i) not to make any sale of the Registrable Securities without effectively
causing the prospectus delivery requirements under the Securities Act to be
satisfied (it being understood that the Stockholder is expressly relying on the
Company to electronically file with the SEC the final prospectus relating to the
Registration Statement within ten (10) Business Days of the effectiveness of
such registration statement); and (ii) if such Registrable Securities are to be
sold by any method or in any transaction other than on a national securities
exchange or in the over-the-counter market, in privately negotiated
transactions, or in a combination of such methods, to notify the Company at
least two (2) Business Days prior to the date on which the Stockholder first
offers to sell any such Registrable Securities.
5. EXPENSES OF
REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements of
counsel for the Company, shall be paid by the Company, provided that the Company
shall have no obligation to pay any costs or expenses incurred by the
Stockholder, including, without limitation, any attorney’s fees or any selling
related expenses.
6. INDEMNIFICATION.
a. In
the event that any Registrable Securities are included in a registration
statement under Section 2 hereof, to the fullest extent permitted by law, the
Company will, and hereby does, indemnify, hold harmless and defend the
Stockholder, against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, attorneys' fees, amounts paid in settlement or
expenses, joint or several, (collectively, “Claims”) incurred in
investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified party is or
may be a party thereto (“Indemnified
Damages”), to which he becomes subject insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the qualification of
the offering under the securities or other “blue sky” laws of any jurisdiction
in which Registrable Securities are offered, or the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading,
(iii) any violation or alleged violation by the Company of the Securities Act,
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any
other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to the Registration Statement or (iv) any material
violation by the Company of this Agreement (the matters in the foregoing clauses
(i) through (iv) being, collectively, “Violations”).
The Company shall reimburse the Stockholder promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a):
(i) shall not apply to a Claim by the Stockholder arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information about
the Stockholder furnished in writing to the Company by the Stockholder expressly
for use in connection with the preparation of the Registration Statement or any
such amendment thereof or supplement thereto; (ii) with respect to any
superseded prospectus, shall not inure to the benefit of any such person from
whom the person asserting any such Claim purchased the Registrable Securities
that are the subject thereof (or to the benefit of any person controlling such
person) if the untrue statement or omission of material fact contained in the
superseded prospectus was corrected in the revised prospectus, as then amended
or supplemented, if such revised prospectus was timely made available by the
Company pursuant to Section 3(c) or Section 3(e), and the Stockholder was
promptly advised in writing not to use the incorrect prospectus prior to the use
giving rise to a violation and the Stockholder, notwithstanding such advice,
used it; (iii) shall not be available to the extent such Claim is based on a
failure of the Stockholder to deliver or to cause to be delivered the prospectus
made available by the Company, if such prospectus was timely made available by
the Company pursuant to Section 3(c) or Section 3(e); and (iv) shall not apply
to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Stockholder
and shall survive the transfer of the Registrable Securities by the Stockholder
pursuant to Section 9 of this Agreement.
b. In
connection with the Registration Statement, the Stockholder agrees to indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement and each Person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act (each, a
“Company Indemnified
Party”), against any Claim or Indemnified Damages to which any of them
may become subject, under the Securities Act, the Exchange Act or otherwise,
insofar as such Claim or Indemnified Damages 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 written information
furnished to the Company by the Stockholder expressly for use in connection with
the Registration Statement; and, subject to Section 6(d), the Stockholder will
reimburse any legal or other expenses reasonably incurred by any Company
Indemnified Party in connection with investigating or defending any such Claim;
provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Stockholder, which consent shall not be unreasonably
withheld; provided, further,
however, that the Stockholder shall be liable under this Section 6(b) for
only that amount of a Claim or Indemnified Damages as does not exceed the net
proceeds to such Stockholder as a result of the sale of Registrable Securities
pursuant to such registration statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such Company Indemnified Party and shall survive the transfer of the Registrable
Securities by the Stockholder pursuant to Section 9.
c. Promptly
after receipt by the Stockholder or Company Indemnified Party under this Section
6 of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, the Stockholder or such
Company Indemnified Party shall, if a Claim in respect thereof is to be made
against any indemnifying party under this Section 6, 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 control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Stockholder or Company Indemnified
Party, as the case may be; provided, however, that the Stockholder
or Company Indemnified Party shall have the right to retain its own counsel with
the fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Stockholder or Company Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Company Indemnified Party or the Stockholder,
as applicable, and any other party represented by such counsel in such
proceeding. The Stockholder or Company Indemnified Party shall cooperate fully
with the indemnifying party in connection with any negotiation or defense of any
such action or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to it which relates to
such action or claim. The indemnifying party shall keep the
Stockholder or Company Indemnified Party fully apprised at all times as to the
status of the defense or any settlement negotiations with respect
thereto. No indemnifying party shall be liable for any settlement of
any action, claim or proceeding effected without its written consent; provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the
Stockholder or applicable Indemnified Party, as applicable, consent to entry of
any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Company Indemnified Party or Stockholder of a release from all liability
in respect to such claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Company Indemnified Party or the Stockholder, as applicable, with respect
to all third parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Stockholder or Company Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
d. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or Indemnified Damages are incurred.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause of
action or similar right of a Company Indemnified Party or the Stockholder
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the
extent any indemnification by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by the Stockholder shall be
limited in amount to the net amount of proceeds received thereby from the sale
of such Registrable Securities.
8. REPORTS AND DISCLOSURE UNDER
THE SECURITIES ACTS.
With a
view to making available to the Stockholder the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the SEC that
may at any time permit the Stockholder to sell securities of the Company to the
public without registration (“Rule 144”), the
Company agrees, at the Company’s sole expense, to use its reasonable best
efforts to:
a. make
and keep public information available, as those terms are understood and defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents is required for the applicable provisions of Rule 144;
c. furnish
to the Stockholder so long as he owns Registrable Securities, promptly upon
request, (i) a written statement by the Company that it has complied with the
reporting and or disclosure provisions of Rule 144, the Securities Act and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Stockholder
to sell such securities pursuant to Rule 144 without registration;
and
d. take
such additional action as is reasonably requested by the Stockholder to enable
the Stockholder to sell the Registrable Securities pursuant to Rule 144,
including, without limitation, delivering all such legal opinions, consents,
certificates, resolutions and instructions to the Company’s Transfer Agent as
may be reasonably requested from time to time by the Stockholder and otherwise
reasonably cooperate with the Stockholder and the Stockholder’s broker to effect
such sale of securities pursuant to Rule 144.
The
Company agrees that damages may be an inadequate remedy for any breach of the
terms and provisions of this Section 8 and that the Stockholder shall, whether
or not it is pursuing any remedies at law, be entitled to equitable relief in
the form of a preliminary or permanent injunctions, without having to post any
bond or other security, upon any breach or threatened breach of any such terms
or provisions.
9. ASSIGNMENT OF REGISTRATION
RIGHTS.
The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Stockholder. The Stockholder
may not assign this Agreement or any rights or obligations under this Agreement
without the prior written consent of the Company, other than to (i) a
partnership, limited liability company or other corporate entity managed or
controlled by the Stockholder or (ii) to a member of the Stockholder’s Immediate
Family or a trust for the benefit of the Stockholder or a member of the
Stockholder’s Immediate Family, provided that such transferee
or assignee shall agree, in writing, to be bound by the terms and conditions of
this Agreement.
10. AMENDMENT OF REGISTRATION
RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Stockholder.
11. MISCELLANEOUS.
a.
The registration rights provided to the Stockholder, and the
Company’s obligation to keep the Registration Statement effective, shall
terminate upon the date on which the Stockholder may sell all Registrable
Securities under Rule 144.
b.
Without the prior written consent of the Stockholder (i) neither the Company nor
any of its security holders (other than any successor party hereto) may include
securities of the Company in the Registration Statement other than Registrable
Securities, and (ii) the Company shall not, during the Registration Period,
enter into any agreement providing any such right to any of its security
holders; provided,
however, that nothing in this Section 11(b) shall preclude the Company
from filing a registration statement, at any time, with respect to securities
other than Registrable Securities.
c.
Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) two (2) Business Days after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for
such communications shall be:
If to the
Company:
12 Xxxxx
Xxxx Street, Building 2B
Poleg
Industrial Area, Netanya
Attention:
Chief Financial Officer
Facsimile
No.: (972) (0) 0000000
If to the
Stockholder:
Xxxxxx
Xxxxxxxx
0000
Xxxxxxx Xxxxxx
Xxxx Xxxx
Xxxxx, XX 00000
Facsimile
No.: 000-000-0000
With a copy to:
Xxxxxx
& Xxxxxx LLP
000 00xx
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxxxxx, Esq.
Facsimile
No.: 202-942-5999
or at
such other address and/or facsimile number and/or to the attention of such other
person as the recipient party has specified by written notice given to each
other party three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
d. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
e. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of laws thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
f.
This Agreement,
together with the Merger Agreement, constitute the entire agreement among
the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Merger Agreement supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
g. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
hereto.
h. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
i.
This Agreement
may be executed in counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the other party hereto
by facsimile transmission or by e-mail in a “.pdf” format data file of a copy of
this Agreement bearing the signature of the party so delivering this
Agreement.
j.
Each party shall do
and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
k. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction will
be applied against any party.
l.
This Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person.
[Remainder of Page Intentionally Left
Blank]
IN WITNESS WHEREOF, the
parties have caused this Registration Rights Agreement to be duly executed as of
day and year first above written.
|
COMPANY:
|
|
|
VOCALTEC
COMMUNICATIONS, LTD.
|
|
|
/s/ Xxxx Xxxxx
|
|
|
Name:
Xxxx Xxxxx
|
|
|
Title: Chairman
of the Board of Directors
|
|
|
STOCKHOLDER:
|
|
|
/s/ Xxxxxx Xxxxxxxx
|
|
|
Xxxxxx
Xxxxxxxx
|
|
|
Number
of Registrable Securities:
|
|
|
2,698,190
|
