1
EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of April
8, 1999 by and among Dense-Pac Microsystems, Inc. a California corporation (the
"Company"), Euroventures Benelux I B.V., Euroventures Benelux II B.V. and Xxxxx
X. Xxxxxx (each an "Investor").
RECITALS:
A. The Investors are the owners of Common Stock of the Company or
have the right to acquire shares of Common Stock pursuant to the terms of that
certain Amended and Restated Loan Agreement of even date herewith (the "Loan
Agreement").
B. The parties to the Loan Agreement have required that certain
registration rights be granted to them with respect to the Common Stock of the
Company now owned or which may be acquired by them or their affiliates.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
1. Definitions. As used herein:
(a) The terms "register", "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act"),
and the declaration or ordering of the effectiveness of such registration
statement.
(b) For the purposes hereof, the term "Registrable Securities"
means (i) in the case of Xxxxx X. Xxxxxx, shares of Common Stock issuable to him
pursuant to the Loan Agreement and in the case of Euroventures Benelux I B.V.,
and Euroventures Benelux II B.V., all shares of Common Stock of the Company now
owned or which may hereafter be acquired by either of them or their respective
affiliates (ii) stock issued with respect to or in any exchange for or in
replacement of stock included in subparagraph (i) above, and (iii) stock issued
in respect of the stock referred to in subparagraphs (i) and (ii) above as a
result of a stock split, stock dividend or the like, provided, however, that
Registrable Securities shall not include any shares of Common Stock which have
been previously resold to the public in a registered public offering or pursuant
to Rule 144, or which have been sold in a private transaction in which the
transferor's rights under this Agreement are not assigned pursuant to Section 13
hereof.
1
2
(c) The terms "Holder" or "Holders" mean any person or persons
to whom Registrable Securities were originally issued and who execute this
Agreement or qualifying transferees under Section 13 hereof who hold Registrable
Securities.
(d) The term "Initiating Holders" means any Holder or Holders of
in the aggregate at least 20% of the Registrable Securities.
(e) The term "Majority Participating Holders" means Holders of a
majority of Registrable Securities proposed to be included in any particular
registration.
(f) The term "SEC" means the Securities and Exchange Commission.
2. Requested Registration.
(a) Request for Registration. In case the Company shall receive
from the Initiating Holders a written request that the Company effect a
registration with respect to all or a part of the Registrable Securities, the
Company will:
(i) within ten (10) days after its receipt thereof give
written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, preparation of a
registration statement and prospectus complying as to form with the requirements
of the Securities Act, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other
state securities laws and appropriate compliance with any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holders'
Registrable Securities as is specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request given within 20 days after
receipt of such written notice from the Company; provided that the Company shall
not be obligated to take any action to effect a registration pursuant to this
Section 2:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration; or
(B) After the Company has effected two such
registrations pursuant to this subsection 2(a) and such registration has been
declared or ordered effective for the period set forth in Section 6(a); or
(C) If the Registrable Securities to be
registered have an anticipated offering price to the public of less than
$1,000,000; or
2
3
(D) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective date
of, a Company-initiated registration; provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to be filed and to become effective.
Subject to the foregoing clauses (A) through (D), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practical, but in any event within ninety (90) days after
receipt of the request or requests of the Initiating Holders; provided, however,
that if the Company shall furnish to such Holders a certificate signed by the
President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors it would materially interfere with the
Company and its business for such registration statement to be filed at the date
filing would be required and it is therefore essential to defer the filing of
such registration statement, the Company shall be entitled to delay the filing
of such registration statement not more than once for an additional period of up
to one hundred and fifty (150) days.
(b) Underwriting. If the Majority Participating Holders intend
to distrib ute the Registrable Securities covered by their request by means of
an underwriting, they shall so advise the Company as a part of their request
made pursuant to Section 2(a) and the Company shall include such information in
the written notice referred to in subsection 2(a)(i). The right of any Holder to
registration pursuant to Section 2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Holders
participating in such registration, provided, however, that the managing
underwriter shall be approved by the Company, which approval shall not be
unreasonably withheld. Notwithstanding any other provision of this Section 2, if
the underwriter advises the Majority Participating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, the Majority Participating Holders shall so advise all Holders of
Registrable Securities who have elected to participate in such offering, and the
number of shares of Registrable Securi ties that may be included in the
registration and underwriting shall be allocated among all such Holders thereof
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders. If any Holder of Registrable
Securities disapproves of the terms of the underwriting, he may elect to
withdraw therefrom by written notice to the Company, the underwriter and the
Majority Participating Holders. Any Registrable Securities which are excluded
from the underwriting by reason of the underwriter's marketing limitation or
withdrawn from such underwriting shall be withdrawn from such registration. If
the underwriter has not limited the number of Registrable Securities to be
underwritten, the Company may include securities for its own account (or for the
account of employees and other holders, at the Company's sole discretion) in
such registration if the underwriter so agrees and if the number of Registrable
Securities which
3
4
would otherwise have been included in such registration and underwriting will
not thereby be limited by the underwriter.
3. Company Registration.
(a) Right to Include. If at any time or from time to time, the
Company proposes to register any of its securities for its own account or the
account of any of its shareholders other than the Holders (other than a
registration relating solely to employee stock option or purchase plans, or a
registration relating solely to a transaction pursuant to Rule 145 promulgated
under the Securities Act, or a registration on any other form (other than Form
X-0, X-0, X-0, XX-0 or any successor to such form) which does not permit
secondary sales), the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance with applicable laws), and
in any underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made within 20 days after receipt of such
written notice from the Company, by any Holder or Holders to be included in any
such registration, except as set forth in Section 3(b) below.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subsection 3(a)(i). In such event the right of any Holder to
registration pursuant to Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 3, if the
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting to
not less than 10% of the shares to be included in any registration that is
solely for the account of the Company. In the event of a cutback by the
underwriters of the number of Registrable Securities to be included in the
registration and underwriting, the Company shall advise all Holders of
Registrable Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of shares of Regis trable Securities that may be
included in the registration and underwriting shall be allocated among all of
such Holders in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders. If any Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
4
5
4. Form S-3. The Company shall use its best efforts to qualify for use
of Form S-3 or any comparable or successor form. Whenever the Company is
qualified to use Form S-3, Holders of the outstanding Registrable Securities
shall have the right to request unlimited registrations on Form S-3 (such
requests shall be in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of the
Registrable Securities by such Holders), subject only to the following:
(a) The Company shall not be required to effect a registration
pursuant to this Section 4 during the period beginning 60 days prior to the
Company's good faith estimate of the date of filing of, and ending 180 days
after the effective date of, any registration referred to in Sections 2 or 3
above, provided that the Company is using its best efforts to cause such
registration statement to be filed and to become effective.
(b) The Company shall not be required to effect a registration
pursuant to this Section 4 unless the Holder or Holders requesting registration
propose to dispose of shares of Registrable Securities having an aggregate
disposition price (before deduction of underwriting discounts and expenses of
sale) of at least $500,000.
(c) The Company shall not be required to effect more than one
registra tion pursuant to this Section 4 in any consecutive 12 month period.
The Company shall promptly give written notice to all Holders of
Registrable Securities of the receipt of a request for registration pursuant to
this Section 4 and shall provide a reasonable opportunity for other Holders to
participate in the registration, provided that if the registration is for an
underwritten offering, the terms of Section 2(b) shall apply to all participants
in such offering. Subject to the foregoing, the Company will use its best
efforts to effect as promptly as practicable the registration of all Registrable
Securities on Form S-3 to the extent requested by the Holder or Holders thereof
for purposes of disposition; provided, however, that if the Company shall
furnish to such Holders a certificate signed by the President or Chief Executive
Officer of the Company stating that in the good faith judgement of the Board of
Directors it would materially interfere with the Company and its business for
such registration statement to be filed at the date filing would be required and
it is therefore essential to defer the filing of such registration statement,
the Company shall be entitled to delay the filing of such registration statement
for such a period that the Board determines in good faith to be necessary, which
in no event shall exceed one hundred and twenty (120) days. Any registration
pursuant to this Section 4 shall not be counted as a registration pursuant to
Section 2.
5. Expenses of Registration. All expenses incurred in connection
with any registration, qualification or compliance pursuant to Sections 2, 3 and
4, including without limitation, all registration, filing and qualification
fees, printing expenses, exchange or NASDAQ listing fees, fees and disbursements
of counsel for the Company and fees and expenses of any special audits
incidental to or required by such registration, shall be borne by the Company
except as follows:
5
6
(a) The Company shall not be required to pay for expenses of any
registration initiated pursuant to Section 2 or 4, the request for which has
been subsequently withdrawn by the Majority Participating Holders (other than as
a result of the Company's deferral), in which such case, such expenses shall be
borne by the Holders requesting such withdrawal; provided, however, that if the
Holders have learned of a material adverse change in the business, condition or
prospects of the Company from that known to the Holders at the time of their
request and have withdrawn the request with reasonable promptness following
disclosure by the Company of such change, then the Holders shall not be required
to pay any such expenses and shall retain their rights to such registration
pursuant to Section 2.
(b) The Company shall not be required to pay fees of legal
counsel of a Holder except for a single counsel acting on behalf of all selling
Holders.
(c) The Company shall not be required to pay underwriters' fees,
discounts or commissions relating to the Registrable Securities.
6. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance pursuant
to Sections 2, 3 or 4 effective for a period of 180 days or until the Holder or
Holders have completed the distribution described in the registration statement
relating thereto, whichever first occurs;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them;
(d) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such 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 not misleading in the light of the circumstances then
existing;
6
7
(e) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such United States jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction;
(f) Cause all such registered Registrable Securities to be
listed on each securities exchange or reporting system on which similar
securities issued by the Company are then listed; and
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Agreement, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with such registration, if such securities are being sold through
underwriters on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities, and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters
and to the Holders requesting registration of Registrable Securities.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Holder of
Registrable Securities, each of its officers, directors and partners, and each
person controlling such Holder, with respect to which such registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any preliminary or final prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation or alleged violation by the Company
relating to action or inaction required of the Company in connection with the
Securities Act, any rule or regulation promulgated under the Securities Act or
any state securities law applicable to the Company and will reimburse (on an as
incurred basis) each such Holder, each of its officers, directors and partners,
and each person controlling such Holder, each such underwriter and each person
who controls any such underwriter, for any reasonable legal and any other
expenses incurred in connection with investigating, defending or settling any
such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage or liability arises out of or is based
7
8
on any untrue statement or omission based upon written information furnished to
the Company in an instrument duly executed by such Holder or underwriter
specifically for use therein, and provided further that the agreement of the
Company to indemnify any person contained herein with respect to any preliminary
prospectus shall not inure to the benefit of any such person if at or prior to
the written confirmation of the sale of such stock, a copy of the prospectus (or
the prospectus as amended or supplemented) was not sent or delivered to such
person, excluding the documents incorporated therein by reference, and the
untrue statement or omission of a material fact contained in such preliminary
prospectus was corrected in the prospectus (or the prospectus as amended or
supplemented).
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company within the meaning of the Securities Act, and
each other such Holder, each of its officers, directors and partners and each
person controlling such Holder, against all claims, losses, expenses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary or final prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse (on an as incurred basis) the Company, such Holders, such
directors, officers, partners, persons or underwriters for any reasonable legal
or any other expenses incurred in connection with investigating, defending or
settling any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company in an instrument
duly executed by such Holder specifically for use therein, and provided further
that the agreement of the Holder to indemnify any person contained herein with
respect to any preliminary prospectus shall not inure to the benefit of any
person if at or prior to the written confirmation of the sale of such stock, a
copy of the prospectus (or the prospectus as amended or supplemented) was not
sent or delivered to such person, excluding the documents incorporated therein
by reference, and the untrue statement or omission of a material fact contained
in such preliminary prospectus was corrected in the prospectus (or the
prospectus as amended or supplemented). Notwithstanding the foregoing, in no
event shall the indemnification provided by any Holder hereunder exceed the
gross proceeds received by such Holder for the sale of such Holder's securities
pursuant to such registration.
(c) Each party entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought. The
Indemnified Party shall promptly permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense
8
9
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not be unreasonably be withheld). The Indemnified Party may
participate in such defense and hire counsel at such party's own expense (or at
the Indemnifying Party's expense, in the event that a conflict of interest
exists between Indemnifying Party's counsel and the Indemnified Party's
counsel). The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations hereunder, unless,
and only to the extent that, such failure is materially prejudicial to an
Indemnifying Party's ability to defend such action. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
the 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 release from all
liability in respect to such claim or litigation. Any Indemnified Party shall
reasonably cooperate with the Indemnifying Party in the defense of any claim or
litigation brought against such Indemnified Party.
If the indemnification provided for in this Section 7 is for any reason
not available to an Indemnified Party with respect to any loss, liability,
claim, damage, or expense referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage, or expense 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 statements or omissions
that resulted in such loss, liability, claim, damage, or expense as will as any
other relevant equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged 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.
8. Lock-Up Provision. Upon receipt of a written request by the
Company or by its underwriters, the Holders shall not sell, sell short, grant an
option to buy, or otherwise dispose of shares of the Company's Common Stock or
other securities (except for any such shares included in the registration) for a
period of one hundred and eighty (180) days following the effective date of a
registration of the Company's securities for its own account (other than any
transfer of shares as a bona fide gift or gifts, or by will or intestacy or, if
the Holder is a partnership or corporation, any distribution by such partnership
or corporation to its partners or shareholders subject to such partners or
shareholders agreeing to be bound by this Section 8); provided, however, that
such Holder shall have no obligation to enter into the agreement described in
this Section 8 unless all executive officers and directors of the Company and
all other Holders and holders of other registration rights from the Company
enter into similar agreements. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of said 180-day period.
9. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding
9
10
such Holder or Holders and the distribution proposed by such Holder or Holders
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to herein.
10. Rule 144 Reporting.
(a) With a view to making available to Holders of Registrable
Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(i) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;
(ii) File with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(iii) So long as a Holder owns any Registrable
Securities, to furnish to such Holder forthwith upon such Holder's request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 and with 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 SEC
allowing such Holder to sell any such securities without registration.
11. Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of 66 2/3% of the Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the Company
which would allow such holder or prospective holder (a) to include such
securities in any registration filed pursuant to this Agreement unless under the
terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of its
securities will not reduce the amount of the Registrable Securities of the
Holders which may be included in such registration or (b) to make a demand
registration which would result in the registration of such parties' securities
to the exclusion of any securities requested to be included in such registration
under Section 3 hereof.
12. Termination. The rights of a Holder pursuant to Sections 2 and 3
of this Agreement shall terminate on the date on which a Holder can sell all of
its Registrable Securities without registration pursuant to Rule 144 within a
three (3) month period, unless at the time the Holder's Registrable Securities
represent more than five percent (5%) of the outstanding capital stock of the
Company, and the rights of a Holder pursuant to Section 4 hereof shall terminate
five years after the date hereof.
10
11
13. Assignment of Rights.
The rights granted pursuant to this Agreement may be assigned by
an Investor or its transferee upon sale or transfer (other than a sale to the
public) of at least a number of shares of Registrable Securities held by an
Investor or transferee equal to at least 5% of the outstanding shares of the
Company's Common Stock, provided that such rights may not be assigned to a
transferee which the Company reasonably believes is a competitor or intends to
become a competitor of the Company and provided further that the Company is
given prompt notice of such transfer and any such transferee shall agree to
become subject to the obliga tions of the Investor under this Agreement.
14. Miscellaneous.
(a) Amendment or Waiver. Any term of this Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) with the
written consent of the Company and Holders holding at least 66 2/3% of the
Registrable Securities. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon the parties hereto and their successors and
assigns, provided that no amendment, waiver or modification may discriminate
against a Holder without such Holder's consent.
(b) Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
(c) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with respect to the
subject hereof and it supersedes, merges, and renders void any and all prior
understandings and/or agreements, written or oral, with respect to such subject
matter.
(d) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be personally delivered,
mailed by certified or registered mail, postage prepaid, or delivered by
overnight delivery or express courier, addressed to the Holders at their
addresses shown on the records of the Company or, to the Company, at its
principal executive office, or at such other address as the Company or any
Holder shall hereafter furnish in writing. All notices that are mailed shall be
deemed delivered seven (7) days after deposit in the United States mail,
immediately upon personal delivery or delivery by facsimile, and two (2) days
after deposit with overnight delivery or express courier.
(e) Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
11
12
(f) 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 and the same instrument.
(g) Attorney's Fees. If any legal action is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
DENSE-PAC MICROSYSTEMS, INC.
By:
-------------------------------------
Title:
----------------------------------
EUROVENTURES BENELUX I B.V.
By:
-------------------------------------
Title:
----------------------------------
EUROVENTURES BENELUX II B.V.
By:
-------------------------------------
Title:
----------------------------------
----------------------------------------
XXXXX X. XXXXXX
12
