Exhibit 7b
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 9, 2000, between
Techrich International Limited ("Purchaser"), and Dauphin Technology, Inc.
(the "Company").
WHEREAS, simultaneously with the execution and delivery of this Agreement,
pursuant to a Common Stock Purchase Agreement dated the date hereof (the
"Purchase Agreement") the Purchaser has committed to purchase up to
$100,000,000 worth of the Company's Common Stock (terms not defined herein
shall have the meanings ascribed to them in the Purchase Agreement); and
WHEREAS, the Company desires to grant to the Purchaser the registration
rights set forth herein with respect to the Shares and the Shares issuable
upon exercise of the Warrants from time to time (the "Warrant Shares")
(hereinafter referred to collectively as the "Stock" or "Securities" of the
Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term "Registrable
Security" means the Securities until (i) all Securities have been disposed of
pursuant to the Registration Statement, (ii) all Securities have been sold
under circumstances under which all of the applicable conditions of Rule 144
(or any similar provision then in force) under the Securities Act ("Rule
144") are met, (iii) all Securities have been otherwise transferred to
persons who may trade such Securities without restriction under the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such Securities not bearing a restrictive legend or
(iv) such time as, in the opinion of counsel to the Company, all Securities
may be sold without any time, volume or manner limitations pursuant to Rule
144(k) (or any similar provision then in effect) under the Securities Act.
The term "Registrable Securities" means any and/or all of the securities
falling within the foregoing definition of a "Registrable Security." In the
event of any merger, reorganization, consolidation, recapitalization or other
change in corporate structure affecting the Common Stock, such adjustment
shall be deemed to be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. The Purchaser acknowledges and
understands that in the absence of an effective Registration Statement
authorizing the resale of the Securities as provided herein, the Securities
are "restricted securities" as defined in Rule 144 promulgated under the Act.
The Purchaser understands that no disposition or transfer of the Securities
may be made by Purchaser in the absence of (i) an opinion of counsel to the
Purchaser, in form and substance reasonably satisfactory to the Company, that
such transfer may be made without registration under the Securities Act or
(ii) such registration.
With a view to making available to the Purchaser the benefits of Rule 144
under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Purchaser to sell securities of
the Company to the public without registration ("Rule 144"), the Company
agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144; and
(b) file with the Commission in a timely manner all reports and other
documents required to be filed by the Company pursuant to Section 13 or 15(d)
under the Exchange Act; and, if at any time it is not required to file such
reports but in the past had been required to or did file such reports, it
will, upon the request of any Purchaser, make available other information as
required by, and so long as necessary to permit sales of, its Registrable
Securities pursuant to Rule 144.
Section 3. Registration Rights With Respect to the Securities.
(a) The Company agrees that it will prepare and file with the Securities and
Exchange Commission ("Commission"), within forty-five (45) days after the
date hereof, a registration statement (on Form S-3 and/or S-1, or other
appropriate form of registration statement) under the Securities Act (the
"Registration Statement"), at the sole expense of the Company (except as
provided in Section 3(c) hereof), in respect of Purchaser, so as to permit a
public offering and resale of the Securities under the Act by Purchaser.
The Company shall use its best efforts to cause the Registration Statement to
become effective within five (5) days of SEC clearance and will within said
five (5) days request acceleration of effectiveness. If the Registration
Statement is not declared effective by September 30, 2000 this Agreement and
the Purchase Agreement shall terminate. The Company will notify Purchaser of
the effectiveness of the Registration Statement within one Trading Day of
such event.
(b) The Company will maintain the Registration Statement or post-effective
amendment filed under this Section 3 hereof effective under the Securities
Act until the earlier of (i) the date that none of the Securities are or may
become issued and outstanding, (ii) the date that all of the Securities have
been sold pursuant to the Registration Statement, (iii) the date the holders
thereof receive an opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Purchaser, that the Securities may be sold under
the provisions of Rule 144 without limitation as to volume, (iv) all
Securities have been otherwise transferred to persons who may trade such
shares without restriction under the Securities Act, and the Company has
delivered a new certificate or other evidence of ownership for such
securities not bearing a restrictive legend, or (v) all Securities may be
sold without any time, volume or manner limitations pursuant to Rule 144(k)
or any similar provision then in effect under the Securities Act in the
opinion of counsel to the Company, which counsel shall be reasonably
acceptable to the Purchaser (the "Effectiveness Period").
(c) All fees, disbursements and out-of-pocket expenses and costs incurred by
the Company in connection with the preparation and filing of the Registration
Statement under subparagraph 3(a) and in complying with applicable securities
and Blue Sky laws (including, without limitation, all attorneys' fees of the
Company) shall be borne by the Company. The Purchaser shall bear the cost of
underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Securities being registered and the fees and expenses of
its counsel. The Purchaser and its counsel shall have a reasonable period,
not to exceed seven (7) Trading Days, to review the proposed Registration
Statement or any amendment thereto, prior to filing with the Commission, and
the Company shall provide each Purchaser with copies of any comment letters
received from the Commission with respect thereto within two (2) Trading Days
of receipt thereof. The Company shall make reasonably available for
inspection by Purchaser, any underwriter participating in any disposition
pursuant to the Registration Statement, and any attorney, accountant or other
agent retained by such Purchaser or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the Company's officers, directors
and employees to supply all information reasonably requested by such
Purchaser or any such underwriter, attorney, accountant or agent in
connection with the Registration Statement, in each case, as is customary for
similar due diligence examinations; provided, however, that all records,
information and documents that are designated in writing by the Company, in
good faith, as confidential, proprietary or containing any material non-
public information shall be kept confidential by such Purchaser and any such
underwriter, attorney, accountant or agent (pursuant to an appropriate
confidentiality agreement in the case of any such Purchaser or agent), unless
such disclosure is made pursuant to judicial process in a court proceeding
(after first giving the Company an opportunity promptly to seek a protective
order or otherwise limit the scope of the information sought to be disclosed)
or is required by law, or such records, information or documents become
available to the public generally or through a third party not in violation
of an accompanying obligation of confidentiality; and provided further that,
if the foregoing inspection and information gathering would otherwise disrupt
the Company's conduct of its business, such inspection and information
gathering shall, to the maximum extent possible, be coordinated on behalf of
the Purchaser and the other parties entitled thereto by one firm of counsel
designed by and on behalf of the majority in interest of Purchaser and other
parties. The Company shall qualify any of the securities for sale in such
states as such Purchaser reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the
Company shall not be required to qualify in any state which will require an
escrow or other restriction relating to the Company and/or the sellers, or
which will require the Company to qualify to do business in such state or
require the Company to file therein any general consent to service of
process. The Company at its expense will supply the Purchaser with copies of
the Registration Statement and the prospectus included therein and other
related documents in such quantities as may be reasonably requested by the
Purchaser.
(d) The Company shall not be required by this Section 3 to include a
Purchaser's Securities in any Registration Statement which is to be filed if,
in the opinion of counsel for both the Purchaser and the Company (or, should
they not agree, in the opinion of another counsel experienced in securities
law matters acceptable to counsel for the Purchaser and the Company) the
proposed offering or other transfer as to which such registration is
requested is exempt from applicable federal and state securities laws and
would result in all purchasers or transferees obtaining securities which are
not "restricted securities", as defined in Rule 144 under the Securities Act.
(e) If at any time or from time to time after the effective date of the
Registration Statement, the Company notifies the Purchaser in writing of the
existence of a Potential Material Event (as defined in Section 3(f) below),
the Purchaser shall not offer or sell any Securities or engage in any other
transaction involving or relating to Securities, from the time of the giving
of notice with respect to a Potential Material Event until such Purchaser
receives written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a Potential
Material Event; provided, however, that if the Company so suspends the right
to such holders of Securities for more than twenty (20) days in the aggregate
during any twelve month period, during the periods the Registration Statement
is required to be in effect then the Company must compensate the Purchaser
for any decline in market value of the Securities held by Purchaser at the
beginning of such suspension through the end of such suspension. If a
Potential Material Event shall occur prior to the date the Registration
Statement is filed, then the Company's obligation to file the Registration
Statement shall be delayed without penalty for not more than thirty (30) days
(and the September 30, 2000 deadline shall be commensurately extended). The
Company must give Purchaser notice in writing at least two (2) Trading Days
prior to the first day of the blackout period, if lawful to do so.
(f) "Potential Material Event" means any of the following: (a) the possession
by the Company of material information that is not ripe for disclosure in a
\registration statement, as determined in good faith by the Chief Executive
Officer or the Board of Directors of the Company or that disclosure of such
information in the Registration Statement would be detrimental to the
business and affairs of the Company; or (b) any material engagement or
activity by the Company which would, in the good faith determination of the
Chief Executive Officer or the Board of Directors of the Company, be
adversely affected by disclosure in a registration statement at such time,
which determination shall be accompanied by a good faith determination by the
Chief Executive Officer or the Board of Directors of the Company that the
Registration Statement would be materially misleading absent the inclusion of
such information.
Section 4. Cooperation with Company. Purchaser will cooperate with the
Company in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by the Company (which shall
include all information regarding the Purchaser and proposed manner of sale
of the Registrable Securities required to be disclosed in the Registration
Statement) and executing and returning all documents reasonably requested in
connection with the registration and sale of the Registrable Securities and
entering into and performing its obligations under any underwriting
agreement, if the offering is an underwritten offering, in usual and
customary form, with the managing underwriter or underwriters of such
underwritten offering. The Purchaser shall consent to be named as an
underwriter in the Registration Statement. Purchaser acknowledges that in
accordance with current Commission policy, the Purchaser will be named as the
underwriter of the Securities in the Registration Statement.
Section 5. Registration Procedures. If and whenever the Company is required
by any of the provisions of this Agreement to effect the registration of any
of the Registrable Securities under the Act, the Company shall (except as
otherwise provided in this Agreement), as expeditiously as possible, subject
to the Purchaser's assistance and cooperation as reasonably required:
(a) prepare and file with the Commission such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Act with respect to the sale or other disposition
of all securities covered by such registration statement whenever the
Purchaser of such Registrable Securities shall desire to sell or otherwise
dispose of the same (including prospectus supplements with respect to the
sales of securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Act) and (ii) take all
lawful action such that each of (A) the Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, not misleading
and (B) the Prospectus forming part of the Registration Statement, and any
amendment or supplement thereto, does not at any time during the Registration
Period include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) prior to the filing with the Commission of any Registration Statement
(including any amendments thereto) and the distribution or delivery of any
prospectus (including any supplements thereto), provide draft copies thereof
to the Purchasers and reflect in such documents all such comments as the
Purchasers (and their counsel) reasonably may propose and (ii) furnish to
each Purchaser such numbers of copies of a prospectus including a preliminary
prospectus or any amendment or supplement to any prospectus, as applicable,
in conformity with the requirements of the Act, and such other documents, as
such Purchaser may reasonably request in order to facilitate the public sale
or other disposition of the securities owned by such Purchaser;
(c) register and qualify the Registrable Securities covered by the
Registration Statement under New York blue sky laws (subject to the
limitations set forth in Section 3(d) above), and do any and all other acts
and things which may be reasonably necessary or advisable to enable each
Purchaser to consummate the public sale or other disposition in such
jurisdiction of the securities owned by such Purchaser, except that the
Company shall not for any such purpose be required to qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified
or to file therein any general consent to service of process;
(d) list such Registrable Securities on the Principal Market, and any other
exchange on which the Common Stock of the Company is then listed, if the
listing of such Registrable Securities is then permitted under the rules of
such exchange or the Nasdaq Stock Market;
(e) notify each Purchaser at any time when a prospectus relating thereto
covered by the Registration Statement is required to be delivered under the
Act, of the happening of any event of which it has knowledge as a result of
which the prospectus included in the 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, and the Company shall prepare and file a curative amendment under
Section 5(a) as quickly as commercially possible;
(f) as promptly as practicable after becoming aware of such event, notify
each Purchaser who holds Registrable Securities being sold (or, in the event
of an underwritten offering, the managing underwriters) of the issuance by
the Commission or any state authority of any stop order or other suspension
of the effectiveness of the Registration Statement at the earliest possible
time and take all lawful action to effect the withdrawal, recession or
removal of such stop order or other suspension;
(g) cooperate with the Purchasers to facilitate the timely preparation and
delivery of certificates for the Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case
may be, as the Purchasers reasonably may request and registered in such names
as the Purchaser may request; and, within three (3) Trading Days after a
Registration Statement which includes Registrable Securities is declared
effective by the Commission, deliver and cause legal counsel selected by the
Company to deliver to the transfer agent for the Registrable Securities (with
copies to the Purchasers whose Registrable Securities are included in such
Registration Statement) an appropriate instruction and, to the extent
necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary to expedite and
facilitate the disposition by the Purchasers of their Registrable Securities
in accordance with the intended methods therefor provided in the prospectus
which are customary for issuers to perform under the circumstances;
(i) in the event of an underwritten offering, promptly include or incorporate
in a Prospectus supplement or post-effective amendment to the Registration
Statement such information as the managers reasonably agree should be
included therein and to which the Company does not reasonably object and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after it is notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment; and
(j) maintain a transfer agent for its Common Stock.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Purchaser and each
person, if any, who controls the Purchaser within the meaning of the
Securities Act ("Distributing Purchaser") against any losses, claims, damages
or liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense
and investigation and all reasonable attorneys' fees), to which the
Distributing Purchaser may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, or any related preliminary prospectus, final prospectus or
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Purchaser, specifically for use in the preparation thereof. This
Section 6(a) shall not inure to the benefit of any Distributing Purchaser
with respect to any person asserting such loss, claim, damage or liability
who purchased the Registrable Securities which are the subject thereof if the
Distributing Purchaser failed to send or give (in violation of the Securities
Act or the rules and regulations promulgated thereunder) a copy of the
prospectus contained in such Registration Statement to such person at or
prior to the written confirmation to such person of the sale of such
Registrable Securities, where the Distributing Purchaser was obligated to do
so under the Securities Act or the rules and regulations promulgated
thereunder. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Distributing Purchaser agrees that it will indemnify and hold
harmless the Company, and each officer, director of the Company or person, if
any, who controls the Company within the meaning of the Securities Act,
against any losses, claims, damages or liabilities (which shall, for all
purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees) to
which the Company or any such officer, director or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any related
preliminary prospectus, final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, preliminary
prospectus, final prospectus or amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the Company by
such Distributing Purchaser, specifically for use in the preparation thereof.
This indemnity agreement will be in addition to any liability which the
Distributing Purchaser may otherwise have. Notwithstanding anything to the
contrary herein, the Distributing Investor shall not be liable under this
Section 6(b) for any amount in excess of the net proceeds to such
Distributing Investor as a result of the sale of Registrable Securities
pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified
party except to the extent of actual prejudice demonstrated by the
indemnifying party. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, assume the defense thereof, subject to the provisions
herein stated and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall not be
at the expense of the indemnifying party if the indemnifying party has
assumed the defense of the action with counsel reasonably satisfactory to the
indemnified party; provided that if the indemnified party is the Distributing
Purchaser, the fees and expenses of such counsel shall be at the expense of
the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the
named parties to any such action (including any impleaded parties) include
both the Distributing Purchaser and the indemnifying party and the
Distributing Purchaser shall have been advised by such counsel that there may
be one or more legal defenses available to the indemnifying party different
from or in conflict with any legal defenses which may be available to the
Distributing Purchaser (in which case the indemnifying party shall not have
the right to assume the defense of such action on behalf of the Distributing
Purchaser, it being understood, however, that the indemnifying party shall,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the Distributing Purchaser,
which firm shall be designated in writing by the Distributing Purchaser). No
settlement of any action against an indemnified party shall be made without
the prior written consent of the indemnified party, which consent shall not
be unreasonably withheld.
All fees and expenses of the indemnified party (including reasonable costs of
defense and investigation in a manner not inconsistent with this Section and
all reasonable attorneys' fees and expenses) shall be paid to the indemnified
party, as incurred, within ten (10) Trading Days of written notice thereof to
the indemnifying party (regardless of whether it is ultimately determined
that an indemnified party is not entitled to indemnification hereunder;
provided, that the indemnifying party may require such indemnified party to
undertake to reimburse all such fees and expenses to the extent it is finally
judicially determined that such indemnified party is not entitled to
indemnification hereunder).
Section 7. Contribution. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the
indemnified party makes a claim for indemnification pursuant to Section 6
hereof but is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that the express
provisions of Section 6 hereof provide for indemnification in such case, or
(ii) contribution under the Securities Act may be required on the part of any
indemnified party, then the Company and the applicable Distributing Purchaser
shall contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault 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 Company on the one hand
or the applicable Distributing Purchaser on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Distributing
Purchaser agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7, in no event shall any
(i) Purchaser be required to undertake liability to any person under this
Section 7 for any amounts in excess of the dollar amount of the net proceeds
to be received by such Purchaser from the sale of such Purchaser's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Registration Statement under which such
Registrable Securities are to be registered under the Securities Act and (ii)
underwriter be required to undertake liability to any person hereunder for
any amounts in excess of the aggregate discount, commission or other
compensation payable to such underwriter with respect to the Registrable
Securities underwritten by it and distributed pursuant to the Registration
Statement.
Section 8. Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be delivered as set forth in
the Purchase Agreement.
Section 9. Assignment. Neither this Agreement nor any rights of the
Purchaser or the Company hereunder may be assigned by either party to any
other person. Notwithstanding the foregoing, (a) the provisions of this
Agreement shall inure to the benefit of, and be enforceable by, any
transferee of any of the Common Stock purchased by the Purchaser pursuant to
the Purchase Agreement other than through open-market sales, and (b) upon the
prior written consent of the Company, which consent shall not be unreasonably
withheld or delayed in the case of an assignment to an affiliate of the
Purchaser, the Purchaser's interest in this Agreement may be assigned at any
time, in whole or in part, to any other person or entity (including any
affiliate of the Purchaser) who agrees to be bound hereby.
Section 10. Counterparts/Facsimile. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which, when together shall constitute but one and the same instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective and
enforceable as the original.
Section 11. Remedies. The remedies provided in this Agreement are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Section 12. Conflicting Agreements. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the holders of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 13. Headings. The headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
Section 14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made in New York by persons domiciled in New York City and without regard to
its principles of conflicts of laws. Any action may be brought as set forth
in the Purchase Agreement. Any party shall have the right to seek injunctive
relief from any court of competent jurisdiction in any case where such relief
is available. Any dispute under this Agreement shall be submitted to
arbitration under the American Arbitration Association (the "AAA") in New
York City, New York, and shall be finally and conclusively determined by the
decision of a board of arbitration consisting of three (3) members
(hereinafter referred to as the "Board of Arbitration") selected as according
to the rules governing the AAA. The Board of Arbitration shall meet on
consecutive business days in New York City, New York, and shall reach and
render a decision in writing (concurred in by a majority of the members of
the Board of Arbitration) with respect to the amount, if any, which the
losing party is required to pay to the other party in respect of a claim
filed. In connection with rendering its decisions, the Board of Arbitration
shall adopt and follow the laws of the State of New York. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more
than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision to
be delivered to all parties involved in the dispute. The Board of Arbitration
shall be authorized and is directed to enter a default judgment against any
party refusing to participate in the arbitration proceeding with thirty days
of any deadline for such participation. Any decision made by the Board of
Arbitration (either prior to or after the expiration of such thirty (30)
calendar day period) shall be final, binding and conclusive on the parties to
the dispute, and entitled to be enforced to the fullest extent permitted by
law and entered in any court of competent jurisdiction. The prevailing party
shall be awarded its costs, including attorneys' fees, from the non-
prevailing party as part of the arbitration award. Any party shall have the
right to seek injunctive relief from any court of competent jurisdiction in
any case where such relief is available. The prevailing party in such
injunctive action shall be awarded its costs, including attorney's fees, from
the non-prevailing party.
Section 15. Severability. If any provision of this Agreement shall for any
reason be held invalid or unenforceable, such invalidity or unenforceablity
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid or unenforceable provision had never been
contained herein. Terms not otherwise defined herein shall be defined in
accordance with the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed, on the day and year first above written.
DAUPHIN TECHNOLOGY, INC.
By: s/Xxxxxx Xxxxxxxxxx/
Xxxxxx Xxxxxxxxxx, President & CEO
TECHRICH INTERNATIONAL LIMITED
By: s/Xxxx Xxxxxxx/
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
