REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into as
of the 6th day of January, 2000 by and between RED HAT, INC., a Delaware
corporation ("RED HAT"), and the Sellers identified on SCHEDULE I hereto (each a
"SELLER" and, collectively, the "SELLERS") by and through Xxxxxxxx X. Xxxxxxx,
as attorney-in-fact for each of the Sellers other than himself ("SHAREHOLDER
REPRESENTATIVE").
W I T N E S S E T H:
WHEREAS, the Sellers are the owners of all of the issued and
outstanding capital stock of Hell's Kitchen Systems, Inc., a Pennsylvania
corporation (the "COMPANY"); and
WHEREAS, simultaneously with the execution of this Agreement, the
Sellers will sell all of the issued and outstanding capital stock of the Company
to Red Hat in exchange for (i) the issuance to them at closing of that number of
shares of Red Hat common stock equal to $21,000,000 divided by $43.932815 (the
"REGISTRABLE SECURITIES") and (ii) the right to receive, if certain conditions
are satisfied after closing, additional shares of Red Hat common stock, all
pursuant to the terms of that certain Agreement and Plan of Merger By and Among
Red Hat, HKS Acquisition Co., the Company, and the Majority Shareholders of the
Company, dated as of January 4th, 2000 (the "MERGER AGREEMENT"); and
WHEREAS, the Registrable Securities will be subject to contractual
restrictions on their disposition pursuant to separate Lock-Up Agreements to be
entered into with each of the Sellers dated the date hereof, (the "LOCK-UP
AGREEMENTS"); and
WHEREAS, the execution of this Agreement by the parties hereto is a
condition precedent to the obligation of the Sellers to consummate the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties contained herein and of the mutual benefits to be
derived herefrom, and intending to be legally bound, the parties hereto agree as
follows:
SECTION 1. INCIDENTAL REGISTRATION.
(a) Whenever, during the period beginning as of the date
hereof and ending August 17, 2000, Red Hat is required by Section 2.2
of the First Amended and Restated Investor Rights Agreement dated as of
February 25, 1999 (the "INVESTOR RIGHTS AGREEMENT") by and among Red
Hat and the entities listed on the signature pages thereto (the
"STOCKHOLDERS") to give notice to the Stockholders of Red Hat's intent
to file a Registration Statement, Red Hat will give notice of its
intent to do so and afford the same
incidental registration rights to all holders of Registrable Securities
under this Agreement on the terms and conditions set forth in the
Investor Rights Agreement; PROVIDED, HOWEVER, the holders of
Registrable Securities under this Agreement shall for such purposes be
considered Other Holders (as defined in the Investor Rights Agreement)
and, in no event, shall the incidental registration rights granted to
the holders of Registrable Securities hereunder be interpreted to be
more favorable than the rights granted to Other Holders (as defined in
the Investor Rights Agreement) to include securities in a registration
initiated by Red Hat or by the Stockholders.
SECTION 2. REQUIRED REGISTRATION.
(a) If Red Hat shall receive at any time during the period
beginning on August 18, 2000 and ending on the first anniversary of the
execution of this Agreement, a written request from holders of at least
thirty-five percent (35%) of the Registrable Securities (the
"INITIATING HOLDERS"), that Red Hat file a registration statement under
the Securities Act covering the registration of at least thirty-five
percent (35%) of the Registrable Securities (a "REQUIRED
REGISTRATION"), then Red Hat shall promptly give written notice of such
request to all other holders of Registrable Securities of its intention
to effect such registration. Red Hat will include in such registration
all Registrable Securities with respect to which Red Hat has received
written requests for inclusion therein within twenty (20) business days
after Red Hat has provided notice to the other holders. Thereupon, Red
Hat shall, as expeditiously as possible, use its best efforts to effect
the Required Registration on an appropriate form of all Registrable
Securities which Red Hat has been requested to so register (provided,
however, that Red Hat will only be obligated to effect such
registration on Form S-3 (or any successor form) if Red Hat is at the
time of the Required Registration eligible to file a registration
statement on such form (or successor form)).
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request for a Required
Registration by means of an underwriting, they shall so advise Red Hat
as a part of their request made pursuant to Section 2(a) and Red Hat
shall include such information in the written notice to other holders
referred to in Section 2(a). The underwriter shall be selected by a
majority in interest of the Initiating Holders and shall be reasonably
acceptable to Red Hat. In such event, the right of any other holder to
include its Registrable Securities in such registration shall be
conditioned upon such other holder's participation in such underwriting
and the inclusion of such other holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by such other holder and
a majority in interest of the Initiating Holders (excluding such other
holder)) to the extent provided herein. All holders proposing to
distribute their securities through such underwriting shall together
with Red Hat enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting as
provided above. Notwithstanding any other provision of this Section
2(b), if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise the other
holders of Registrable Securities that would otherwise
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be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall
be allocated among all participating holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the
amount of Registrable Securities of Red Hat owned by each participating
holder.
(c) Red Hat shall be obligated to effect only one (1) such
registration pursuant to Section 2(a).
(d) If at the time of any request to register Registrable
Securities by Initiating Holders pursuant to this Section 2, Red Hat
has engaged or has plans to engage in a registered public offering or
is engaged in any other activity which, in the good faith determination
of Red Hat's Board of Directors, would be adversely affected by the
requested registration, then Red Hat may, at its option, direct that
such request be delayed for a period not in excess of 90 days from the
date of such request, in which event the termination date specified in
Section 10 below shall be extended for a period equal to the period of
such delay.
(e) The right of the holders of Registrable Securities to
request that Red Hat file a registration statement under this Section 2
and their right to have Registrable Securities included in such
Registration Statement are subject in each instance to the provision of
Section 2.9 of the Investor Rights Agreement that Stockholders shall be
entitled to include their Registrable Shares (as defined in the
Investor Rights Agreement) in such Registration Statement on a pro rata
basis with the holders of Registrable Securities based on the number of
shares of Common Stock of Red Hat (on an as-converted basis) owned by
Stockholders and the holders of Registrable Securities hereunder.
SECTION 3. RESALES PURSUANT TO RULE 144. In order to make available to
the holders of Registrable Securities the benefits of Rule 144 and any other
rule or regulation of the Securities and Exchange Commission (the "SEC") that
may at any time permit a holder of Registrable Securities to sell securities of
Red Hat to the public without registration, Red Hat shall:
(a) make and keep adequate current public information
available at all times as required by Rule 144; and
(b) take such action as is necessary to enable the holders of
Registrable Securities to utilize Rule 144 for the sale of their
Registrable Securities, including, but not limited to, the filing with
the SEC in a timely manner all reports and other documents required of
Red Hat under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"); and
(c) furnish to any holder, so long as such holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by Red Hat that it has complied with the reporting requirements of Rule
144, the Securities Act and the Exchange Act, (ii)
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a copy of the most recent annual or quarterly report of Red Hat and
such other reports and documents so filed by Red Hat, and (iii) such
other information as may be reasonably requested by such holder to
permit the holder to use any rule or regulation of the SEC that permits
the selling of any such securities without registration.
SECTION 4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to Section 2 of this Agreement, Red Hat will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto Red Hat will as
expeditiously as possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective and remain
effective for one hundred twenty (120) days from the effective date or
such lesser period until all such Registrable Securities are sold;
(b) Furnish to each Seller of Registrable Securities such
reasonable number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as such Seller may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such Seller;
(c) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than one hundred twenty
(120) consecutive days or such shorter period which will terminate when
Registrable Securities covered by such registration statement have been
sold and comply with the provisions of the Securities Act (including
the antifraud provisions thereof);
(d) If Red Hat has delivered a prospectus to the Sellers of
Registrable Securities and after having done so, the prospectus is
amended to comply with the requirements of the Securities Act, Red Hat
shall promptly notify the Sellers and, if requested, the Sellers shall
immediately cease making offers of Registrable Securities and return
all prospectuses to Red Hat. Red Hat shall promptly provide the Sellers
with revised prospectuses and, following receipt of the revised
prospectuses, the Sellers shall be free to resume making offers of the
Registrable Securities;
(e) Use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions within the United States as the Sellers shall
request and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers to consummate
the public sale or other disposition in such jurisdictions of the
Registrable Securities owned by such Sellers; provided, however, that
Red Hat shall not be required to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
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(f) Notify each Seller of Registrable Securities, promptly
after Red Hat shall receive notice thereof, of the time when a
Registration Statement with respect to Registrable Shares has become
effective or a supplement to any prospectus used in connection
therewith in forming a part of such Registration Statement has been
filed;
(g) In the event that, in the judgment of Red Hat, it is
advisable to suspend use of a prospectus included in a Registration
Statement due to pending material developments or other events that
have not yet been publicly disclosed and as to which Red Hat believes
public disclosure would be detrimental to Red Hat, Red Hat shall notify
all Sellers to such effect, and, upon receipt of such notice, each such
Seller shall immediately discontinue any sales of Registrable
Securities pursuant to such Registration Statement until such Seller
has received copies of a supplemented or amended prospectus or until
such Seller is advised in writing by Red Hat that the then current
prospectus may be used and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such prospectus. Notwithstanding anything to the contrary
herein, Red Hat shall not exercise its rights under this Section to
suspend sales of Registrable Securities for a period in excess of 90
days in any 365-day period;
(h) Promptly make available for inspection by any Seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such Seller or underwriter,
all financial and other records (reasonably requested), pertinent
corporate documents and contracts of Red Hat as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause Red Hat's officers, directors, employees and
independent accountants to supply all information reasonably requested
by any such Seller, underwriter, attorney, accountant or agent in
connection with such registration statement, PROVIDED, HOWEVER, that
each Seller of Registrable Securities agrees that information obtained
by it as a result of such inspections which is deemed confidential
shall not be used by it as the basis for any market transaction in
securities of Red Hat unless and until such information is made
generally available to the public and each such Seller shall cause any
attorney, accountant or agent retained by such Seller to keep
confidential any such information;
(i) In the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any common stock included in such
registration statement for sale in any jurisdiction, Red Hat will use
reasonable efforts promptly to obtain the withdrawal of such order; and
(j) If the offering is to be underwritten, enter into any
necessary agreements in connection therewith (including an underwriting
agreement containing customary representations, warranties and
agreements); and
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(k) Take all such other reasonable actions in connection
therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, make such representations
and warranties to the holders of such Registrable Securities and the
underwriters, if any, in such form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings, obtain opinions of counsel to Red Hat and updates thereof
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the managing underwriters, if any, and the
Sellers), and obtain "cold comfort" letters and updates thereof from
Red Hat's independent certified public accountants addressed to the
sellers and the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary
underwritten offerings.
SECTION 5. REGISTRATION EXPENSES.
(a) COMPANY EXPENSES. All expenses (herein called
"REGISTRATION EXPENSES") incident to Red Hat's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities and blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of counsel for Red Hat, and fees and
disbursements of all Red Hat's certified public accountants,
underwriters (excluding discounts and commissions) and any Persons
retained by Red Hat, will be paid by Red Hat.
(b) HOLDER EXPENSES. Except as otherwise paid by Red Hat
pursuant to Section 5(a) above, each holder of Registrable Securities
shall bear all expenses incurred by such holder in connection with the
negotiation and preparation of any registration statement, underwriting
agreement and all other documents and instruments contemplated hereby
to which any such holder is a party, including, without limitation, the
fees and expenses, if any, of its legal counsel.
SECTION 6. UNDERTAKINGS OF THE HOLDERS OF REGISTRABLE SECURITIES.
(a) SUSPENSION OF SALES. If any Registrable Securities are
included in a registration statement pursuant to the terms of this
Agreement, the holder thereof will not (until further notice) effect
sales thereof after receipt of written notice from Red Hat to suspend
sales to permit Red Hat to correct or update a registration statement
or prospectus.
(b) COMPLIANCE. If any Registrable Securities are being
registered in any registration pursuant to this Agreement, the holder
thereof will comply with all anti-stabilization, manipulation and
similar provisions of Section 10 of the Exchange Act applicable to the
Holder, and any rules promulgated thereunder by the SEC applicable to
the Holder and, at the request of Red Hat, will execute and deliver to
Red Hat and to any underwriter participating in such offering an
appropriate agreement to such effect.
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(c) TERMINATION OF EFFECTIVENESS. At the end of the period
during which Red Hat is obligated to keep a registration statement
current and effective as described herein, each holder of Registrable
Securities included in the registration statement shall discontinue
sales thereof pursuant to such registration statement, unless such
holder has received written notice from Red Hat of its intention to
continue the effectiveness of such registration statement with respect
to any of such securities which remain unsold.
SECTION 7. UNDERWRITTEN REGISTRATIONS
(a) FURNISH INFORMATION. No holder of Registrable Securities
may participate in any registration hereunder which is underwritten
unless such holder (i) agrees to sell such holder's securities on the
basis provided in any underwriting arrangements approved by the holder
or holders entitled hereunder to approve such arrangements, and (ii)
completes and executes all customary questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements,
provided that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations
or warranties to Red Hat or the underwriters on account of the
registration of shares owned by such holder other than representations
and warranties regarding such holder and such holder's intended method
of distribution.
(b) RIGHT OF APPROVAL. Red Hat shall not include in any
registration statement (or attachments or exhibits thereto), filed by
Red Hat (under this Agreement or otherwise) pursuant to the Securities
Act any information describing or relating to the Sellers or their
relationship with Red Hat without the advance written consent of the
Sellers, which consent shall not be unreasonably withheld or delayed.
(c) DELAY OF REGISTRATION. No holder of Registrable Securities
shall have any right to obtain or seek an injunction restraining or
otherwise delaying the preparation of, or declaration of the
effectiveness of, any registration statement initiated in accordance
with the terms of this Agreement if such injunction is the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
SECTION 8. ASSIGNMENT OF THE SELLERS' REGISTRATION RIGHTS. The right of
a holder to participate in a registration under this Agreement may be assigned
to any person or entity to which at least 25% of the Registrable Securities
owned by such investor as of the date hereof are transferred and such transferee
shall be deemed a seller for purposes of this Agreement; PROVIDED, HOWEVER, that
(i) Red Hat must receive written notice prior to the time of said transfer and
(ii) said transferee or assignee must agree to be bound by this Agreement and
execute a counterpart signature page evidencing such acceptance of this
Agreement. No such transfer shall be permitted by any Seller pursuant to this
Section 8 to any person or entity that a majority of the Board of Directors of
Red Hat deem to be a competitor of Red Hat.
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SECTION 9. INDEMNIFICATION AND CONTRIBUTION
(a) In the event of any registration of any of the
Registrable Securities under the Securities Act pursuant to this
Agreement, Red Hat will indemnify and hold harmless the seller of such
Registrable Securities, each underwriter of such Registrable
Securities, and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may
become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws 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 any Registration Statement
under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement
to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and Red Hat will reimburse such seller, underwriter and
each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person
in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that Red Hat 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 any untrue statement
or omission made in such Registration Statement, preliminary prospectus
or prospectus, or any such amendment or supplement, in reliance upon
and in conformity with information furnished to Red Hat, in writing, by
or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, each
seller of Registrable Securities, severally and not jointly, will
indemnify and hold harmless Red Hat, each of its directors and officers
and each underwriter (if any) and each person, if any, who controls Red
Hat or any such underwriter within the meaning of the Securities Act or
the Exchange Act, against any losses, claims, damages or liabilities,
joint or several, to which Red Hat, such directors and officers,
underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws 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 a material fact contained in
any Registration Statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of
or are based upon any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to such
seller furnished in writing to Red Hat by or on behalf of such seller
specifically for use in connection with the preparation of such
Registration
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Statement, prospectus, amendment or supplement; PROVIDED, HOWEVER, that
the obligations of a Seller hereunder shall be limited to an amount
equal to the net proceeds to such Seller of Registrable Securities sold
in connection with such registration.
(c) Each party entitled to indemnification under this Section
(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, and shall 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 of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the
extent that the Indemnifying Party is adversely affected by such
failure. The Indemnified Party may participate in such defense at such
party's expense; PROVIDED, HOWEVER, that the Indemnifying Party shall
pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due
to actual or potential differing interests between the Indemnified
Party and any other party represented by such counsel in such
proceeding; PROVIDED FURTHER that in no event shall the Indemnifying
Party be required to pay the expenses of more than one law firm per
jurisdiction as counsel for the Indemnified Party. The Indemnifying
Party also shall be responsible for the expenses of such defense if the
Indemnifying Party does not elect to assume such defense. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section
9 is due in accordance with its terms but for any reason is held to be
unavailable to an Indemnified Party in respect to any losses, claims,
damages and liabilities referred to herein, then the Indemnifying Party
shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages or liabilities to which such party may be
subject in such proportion as is appropriate to reflect the relative
fault of Red Hat on the one hand and the Sellers on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of Red Hat and the Sellers
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact related to
information supplied by Red Hat or the Sellers and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Red Hat
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and the Sellers agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph of Section 9, (i) in
no case shall any one Seller be liable or responsible for any amount in
excess of the net proceeds received by such Seller from the offering of
Registrable Securities and (ii) Red Hat shall be liable and responsible
for any amount in excess of such proceeds; PROVIDED, HOWEVER, that 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. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve such party from any other
obligation it or they may have thereunder or otherwise under this
Section. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its prior written
consent, which consent shall not be unreasonably withheld.
SECTION 10. TERMINATION. All of Red Hat's obligations to register
Registrable Securities under this Agreement shall terminate at midnight on the
first anniversary of the date hereof, unless extended as provided in Section
2(d) above.
SECTION 11. LOCK-UP AGREEMENT RESTRICTIONS.
(a) Except as provided in Sections 11(b) and (c) below, the
registration rights granted in Sections 1 and 2 above shall not apply
to any Registrable Shares that continue to be subject to the
restrictions on disposition imposed by the Lock-Up Agreements.
(b) In the case of any required registration under Section 2
or an incidental registration under Section 1 that is not a registered
public offering involving an underwriting, Red Hat will include
Registrable Shares that continue to be subject to the restrictions on
disposition imposed by the Lock-Up Agreements if, prior to the end of
the 120 day period beginning with the effective date of the
registration statement pursuant to which those Registrable Shares are
to be distributed, the restrictions imposed by the Lock-Up Agreement on
the disposition of those Registrable Shares will by their terms have
lapsed.
(c) In the case of an incidental registration under Section 1
that is a registered public offering involving an underwriting, Red Hat
will include Registrable Shares that continue to be subject to the
restrictions on disposition imposed by the Lock-Up Agreements if, prior
to the effective date of the registration statement pursuant to which
these Registrable Shares are to be distributed, the restrictions
imposed by the Lock-Up Agreements on the disposition of those
Registrable Shares will by their terms have lapsed.
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SECTION 12. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder shall be in writing and will be deemed to have been duly
given and received (i) when personally delivered, (ii) when sent by
telefax to a party at the number listed below for such party, (iii)
three (3) business days after the day on which the same has been
delivered prepaid to an international courier service, or (iv) three
(3) business days after the deposit in the United States mail,
registered or certified, return receipt requested, postage prepaid, in
each case addressed to the party to whom such notice is to be given at
the following address for such party:
If to Red Hat: BY MAIL TO:
X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Attn: President
Telefax No.: (000) 000-0000
BY OVERNIGHT COURIER TO:
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: President
Telefax No: (000) 000-0000
With copies to: Xxxxx & Xxx Xxxxx, PLLC
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Telefax No.: (000) 000-0000
If to the Sellers: c/o Xxxxxxxx X. Xxxxxxx
Shareholder Representative
0000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telefax No.: (000) 000-0000
With copies to: Xxxxx Xxxx & Xxxxxxxxx, XXX
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxx
Telefax No.: (000) 000-0000
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Any party hereto from time to time may change its address, telefax
number or other information for the purpose of notices to that party by
giving notice specifying such change to the other parties hereto.
(b) RIGHTS OF HOLDERS. Each holder of Registrable Securities
shall have the absolute right to exercise or refrain from exercising
any right or rights that such holder may have by reason of this
Agreement, including, without limitation, the right to consent to the
waiver or modification of any obligation under this Agreement, and such
holder shall not incur any liability to any other holder of any
securities of Red Hat as a result of exercising or refraining from
exercising any such right or rights.
(c) WAIVER. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party waiving
such term or condition. No waiver by either party of any term or
condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.
(d) AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of
each party hereto.
(e) REMEDIES. Each party hereto will be entitled to enforce
any right granted to such party by any provision of this Agreement
specifically to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by
law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any
bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the
subject matter hereof and contains the sole and entire agreement among
the parties hereto with respect to the subject matter hereof.
(j) CAPTIONS. The captions used in this Agreement have been
inserted for convenience of reference only and do not define or limit
the provisions hereof.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina
applicable to a contract executed and performed in such State, without
giving effect to the conflicts of laws principles thereof.
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(l) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together will constitute one and the same instrument.
(m) SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
(n) NO THIRD PARTY BENEFICIARY. This Agreement shall not
confer any rights or remedies upon any Person other than the parties
hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
RED HAT:
RED HAT
By:/s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
SELLERS:
--------
(See SCHEDULE I attached hereto)
By: /s/ XXXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxxx X. Xxxxxxx, for himself
and as Shareholder Representative,
being attorney-in-fact for each of
the Sellers listed on SCHEDULE I hereto
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SCHEDULE I
SELLERS:
Xxxxxxxx X. Xxxxxxx Xxxxxxx XxXxxxx
L. Xxxx Xxxxx Xxxxxx X. & Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Xxxxx X. XxXxxxx
Xxxxxxx Xxxx Xxxxx Xxxxx-Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx Xxxxxxxx X. & Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxx Xxxxx XxXxxxx
Xxxxxxx Xxxxxx Xxxxxx XxXxxxxxx
Xxxxxx Xxxxxxxxx Xxxxxxx XxXxxxx
Xxxxxx Xxxxx R. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxx Xxxxxxx XxXxxxxx
Xxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxx Xxxxx, Xxxx & Xxxxxxxxx, LLP
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