Exhibit 4.12
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
between
MULTI-LINK TELECOMMUNICATIONS, INC.
and
GLENAYRE TECHNOLOGIES, INC.
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Dated as of June 30, 2000
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TABLE OF CONTENTS
Page No.
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SECTION 1. Definitions ................................................ 1
SECTION 2. Securities Subject to this Agreement ....................... 2
SECTION 3. Demand Registration ........................................ 2
SECTION 4. Piggy-Back Registration .................................... 3
SECTION 5. Holdback Agreements ........................................ 4
SECTION 6. Registration Procedures .................................... 4
SECTION 7. Registration Expenses ...................................... 7
SECTION 8. Indemnification; Contribution .............................. 7
SECTION 9. Rules 144 and 144A ......................................... 9
SECTION 10. Miscellaneous .............................................. 10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is dated as of June 30, 2000 (this
"Agreement"), by and between MULTI-LINK TELECOMMUNICATIONS, INC., a Colorado
corporation (the "Company"), and GLENAYRE TECHNOLOGIES, INC., a Delaware
corporation (together with its successors and assigns, "Glenayre").
Statement of Purpose
Pursuant to a Securities Purchase Agreement, dated the date hereof (the
"Purchase Agreement"), between the Company and Glenayre, the Company issued to
Glenayre (1) certain shares of its no par value common stock (the "Shares") and
(2) a Common Stock Purchase Warrant to purchase 100,000 shares of the common
stock of the Company. Glenayre has requested, as a condition to its entering
into the Purchase Agreement and purchasing the securities thereunder, that the
Company provide, and the Company has agreed to provide to Glenayre, certain
registration rights with respect to the Registrable Securities (as hereinafter
defined) owned by Glenayre.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions For the purposes of this Agreement, in addition to
the terms defined elsewhere in this Agreement, the following terms have the
meanings set forth below:
"Approved Underwriter" shall have the meaning assigned thereto in Section
3(d).
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means (1) the no par value common stock of the Company as
described in the Articles of Incorporation of the Company as in effect on the
date hereof, (2) any other class of capital stock hereinafter authorized having
the right to share in distributions either of earnings or assets without limit
as to amount or percentage and (3) any other capital stock into which such
Common Stock is reclassified or reconstituted.
"Company Underwriter" shall have the meaning assigned thereto in Section 4.
"Contingent Warrant" means the Common Stock Purchase Warrant exercisable
for 50,000 shares of Common Stock, in the form of Exhibit A hereto, issuable to
Glenayre under the conditions specified in Section 3(e).
"Demand Registration" means a demand registration requested by Glenayre
pursuant to Section 3.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders' Counsel" shall have the meaning assigned thereto in Section
6(a)(i).
"Holder" means any Person owning or having the right to acquire Registrable
Securities.
"Inspector" shall have the meaning assigned thereto in Section 6(a)(viii).
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any individual, firm, corpor ation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, government (or an agency or political subdivision
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"Records" shall have the meaning assigned hereto in Section 6(a)(viii).
"Registrable Securities" means (i) the Shares, (ii) any other shares of
Common Stock held by Glenayre as of July 1, 2000, (iii) shares of Common Stock
issued or issuable upon exercise of the Warrant, (iv) shares of Common Stock
issued or issuable upon exercise of the Contingent Warrant and (v) any other
common equity securities of the Company issued in exchange for, upon a
reclassification of, or in a distribution with respect to, the Shares, the
Warrant or the Contingent Warrant.
"Registration Expenses" shall have the meaning assigned thereto in Section
7.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant" means the Warrant issued to Glenayre pursuant to the Purchase
Agreement.
SECTION 2. Securities Subject to this Agreement
(a) Registrable Securities. For the purposes of this Agreement, Registrable
Securities will cease to be Registrable Securities when (i) a registration
statement covering such Registrable Securities has been declared effective under
the Securities Act by the Commission and such Registrable Securities have been
disposed of pursuant to such effective registration statement or (ii) the entire
amount of Registrable Securities proposed to be sold in a single sale are, or in
the opinion of counsel reasonably satisfactory to the Company may be,
distributed to the public in such single sale pursuant to Rule 144 (or any
successor provision then in force) under the Securities Act. Registrable
Securities issuable upon exercise of an option, warrant or other right or upon
conversion of another security shall be deemed outstanding for the purposes of
this Agreement.
(b) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever such Person owns of record Registrable
Securities. A Person need not exercise the Warrant or Contingent Warrant prior
to the Company's effecting the registration of Common Stock issuable upon
exercise of such Warrants.
SECTION 3. Demand Registration.
(a) Demand Registration. Glenayre may, at any time after September 30,
2000, make a written request for registration of Registrable Securities under
the Securities Act, and under the securities or blue sky laws of any
jurisdiction reasonably designated by Glenayre; provided, that subject to
Section 3(c), the Company will not be required to effect more than two
registrations at the request of Glenayre pursuant to this Section 3(a) and the
Company will not be required to effect such registration within the period
beginning on the effective date of a registration statement filed by the Company
on its behalf covering a firm commitment underwritten public offering and ending
on the later of (i) 90 days thereafter and (ii) the expiration of any lock-up
period (not to exceed 180 days) required by the underwriters.
(b) Company Obligation to Register. Each request for a Demand Registration
pursuant to Section 3(a) shall specify the number of the Registrable Securities
proposed to be sold, the intended method of disposition thereof and the
jurisdictions in which registration is desired. Upon a request for a Demand
Registration, the Company shall, with reasonable promptness and in any event not
later than 90 days after the Company's receipt of such request, file a
registration statement with the Commission relating to such Registrable
Securities as to which such request for a Demand Registration relates and use
its best efforts to cause all Registrable Securities to be registered under the
Securities Act. A registration shall not constitute a Demand Registration until
it has become effective and remains continuously effective for a period of not
less than 24 months or such shorter period which will terminate when all
Registrable Securities covered by such registration statement (i) have been sold
(but not before the expiration of the 90 day period referred to in Section 4(3)
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of the Securities Act and Rule 174 thereunder, if applicable), or (ii) may, in
the opinion of counsel reasonably satisfactory to the Company, be distributed to
the public in a single sale pursuant to Rule 144 (or any successor provision
then in force) under the Securities Act. In any registration initiated as a
Demand Registration, the Company shall pay all Registration Expenses in
connection therewith, whether or not such Demand Registration becomes effective.
(c) Underwriting Procedures. If Glenayre so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 3(d). In such event, if the Approved
Underwriter advises the Company, which advice shall be confirmed in writing,
that in its opinion marketing considerations require a limitation on the number
of securities to be sold, the Company shall include in such registration only
the number of Registrable Securities which, in the good faith opinion of such
Approved Underwriter, can be sold.
To the extent Registrable Securities held by Glenayre are excluded from the
offering to be made pursuant to the Demand Registration requested by Glenayre,
then Glenayre shall have the right to one additional Demand Registration under
this Section 3 with respect to such Registrable Securities.
(d) Selection of Underwriters. In connection with its requesting a Demand
Registration of Registrable Securities pursuant to Section 3(a), Glenayre may
select and obtain an investment banking firm of first class national reputation
to act as the managing underwriter of the offering (the "Approved Underwriter");
provided that the Approved Underwriter shall, in any case, be acceptable to the
Company in its reasonable judgment.
(e) Warrant. In the event that Glenayre requests a Demand Registration of
Registrable Securities pursuant to Section 3(a) and, for whatever reason, the
registration statement for the Registrable Securities requested to be included
in such registration statement has not become effective within 180 days after
Glenayre's request for the Demand Registration, then, upon written notice from
Glenayre, the Company will immediately issue to Glenayre, without any additional
payment by Glenayre, the Contingent Warrant. The issuance of the Contingent
Warrant shall be deemed as liquidated damages and shall be in lieu of and not in
addition to other remedies under any other provisions hereunder.
(f) Permitted Postponement of Registration. The Company shall not be
required to effect a registration pursuant to this Section 3 if the Company
shall furnish to Glenayre a certificate signed by the Chief Executive Officer of
the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be effected as such time, in
which event the Company shall have the right to defer such filing for a period
of not more than 90 days after receipt of the request of Glenayre.
SECTION 4. Piggy-Back Registration
(a) Piggy-Back Rights. If the Company proposes to file, at any time on or
after September 30, 2000, a registration statement under the Securities Act with
respect to an offering by the Company for its own account, or an offering for
the account of any stockholder of the Company or any group of such stockholders
(other than a registration statement on Form S-4 or S-8 or any successor forms
or any other forms not available for registering capital stock for sale to the
public), then the Company shall give written notice of such proposed filing to
each Holder at least 30 days before the anticipated filing date, and such notice
shall describe in detail the proposed registration and distribution (including
whether the offering will be underwritten and those jurisdictions where
registration under the securities or blue sky laws is intended) and offer each
Holder the opportunity to register the number of Registrable Securities as it
may request. The Company shall use its best efforts, within 10 days of the
notice provided for in the preceding sentence, to cause the managing underwriter
or underwriters of a proposed underwritten offering (the "Company Underwriter")
to permit each Holder to include such Registrable Securities in such offering on
the same terms and conditions as the securities of the Company or the other
group of stockholders included therein, including execution of an underwriting
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agreement in customary form. Notwithstanding the foregoing, if the Company
Underwriter advises the Company in writing that marketing considerations require
a limitation on the number of securities to be sold, the Company shall include
in such registration (except in connection with a Demand Registration, which
priority shall be governed by Section 3), only that number of securities which
the Company Underwriter determines in its sole discretion will not jeopardize
the success of the offering. Allocation of securities to be sold in the offering
among the holders of securities (including the Holders) requesting to be
included in such registration pursuant to "piggy-back" registration rights
granted by the Company (the "Requesting Holders") shall be made on a priority
basis as follows:
(i) first, 100% of the securities proposed to be sold by the
Company and 100% of the securities proposed to be sold by holders of securities
with "piggy-back" registration rights granted by the Company prior to the date
hereof which registration rights do not contain "underwriter cut-back" or other
provisions similar to those contained in this Section 4; and
(ii) second, the securities requested to be included by the
Requesting Holders shall be included on a pro rata basis. For this purpose, the
"pro rata" share of each Requesting Holder shall be the percentage determined by
dividing the number of shares of Common Stock owned by such Requesting Holder by
the total number of shares of Common Stock owned by all Requesting Holders.
(b) Withdrawal by Company. Notwithstanding anything to the contrary
contained herein, the Company shall be permitted to withdraw, abandon or elect
not to file any registration statement the Company has proposed to file and
given notice pursuant to Section 4(a).
SECTION 5. Holdback Agreements
(a) Restrictions on Public Sale by Holders. In order to participate in a
registration effected hereby, to the extent not inconsistent with applicable
law, each Holder agrees not to effect any public sale or distribution of any
Registrable Securities being registered or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Securities Act, during the period beginning on
the filing of such registration statement and ending on the later of (i) 90 days
after the effective date of such registration statement or the commencement of a
public distribution of the Registrable Securities pursuant to such registration
statement or (ii) the expiration of any lock-up period required by the
underwriters.
(b) Restrictions on Public Sale by the Company. The Company agrees not to
effect any public sale or distribution of any of its securities, or any
securities convertible into or exchangeable or exercisable for such securities
(except pursuant to registrations on Form S-4 or S-8 or any successor to such
forms or any other forms not available for registering capital stock for sale to
the public) during the period beginning on the filing of any registration
statement in which the holders of Registrable Securities are participating and
ending on the later of (i) 90 days after the effective date of any such
registration statement and (ii) the expiration of any lock-up period required by
the underwriters.
SECTION 6. Registration Procedures
(a) Obligations of the Company. Whenever registration of Registrable
Securities has been requested pursuant to Section 3 or 4 of this Agreement, the
Company shall use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method of distribution
thereof as quickly as practicable, and in connection with any such request, the
Company shall, as expeditiously as possible:
(i) prepare and file with the Commission (as promptly as
practicable, but in any event not later than 90 days after receipt of a request
to file a registration statement with respect to Registrable Securities) a
registration statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of such Registrable Securities in accordance with the intended
method of distribution thereof, and use its best efforts to cause such
registration statement to become effective; provided, that before filing a
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registration statement or prospectus or any amendments or supplements thereto,
the Company shall (A) provide counsel selected by the Holders of a majority of
the Registrable Securities being registered in such registration ("Holders'
Counsel") with an adequate and appropriate opportunity to participate in the
preparation of such registration statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the Commission,
which documents shall be subject to the review of Holders' Counsel, and (B)
notify Holders' Counsel and each seller of Registrable Securities of any stop
order issued or threatened by the Commission and take all reasonable action
required to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 24 months or such shorter period which will terminate
when all Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the 90-day period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(iii) as soon as reasonably possible, furnish to each seller of
Registrable Securities, prior to filing a registration statement, copies of such
registration statement as it is proposed to be filed, and thereafter such number
of copies of such registration statement, each amendment and supplement thereto
(in each case including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus) and such other
documents as each such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller of Registrable Securities reasonably requests, and to continue such
qualification in effect in such jurisdictions for as long as is permissible
pursuant to the laws of such jurisdictions, or for as long as any such seller
requests or until all of such Registrable Securities are sold, whichever is
shortest, and do any and all other acts and things which may be reasonably
necessary or advisable to enable any such seller to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such seller;
provided that the Company shall not be obligated to effect, or take any action
to effect, any such registration or qualification 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 qualification unless -------- the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations thereunder;
(v) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(vi) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such prospectus shall not contain an
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untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made;
(vii) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Approved Underwriter or
Company Underwriter, if any, selected as provided in Section 3 or 4) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities;
(viii) make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition pursuant
to such registration statement, Holders' Counsel and any attorney, accountant or
other agent retained by such seller or any managing underwriter (each, an
"Inspector" and collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and the
independent public accountants of the Company, to supply all information
reasonably requested by any such Inspector in connection with such registration
statement; Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (A) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the registration
statement or to confirm that no such misstatement or omission has been made, (B)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (C) the information in such Records
has been made generally available to the public or is required to be filed with,
or made available as supplemental information to, the Commission. Each seller of
Registrable Securities agrees that it shall, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten offering, obtain
a "cold comfort" letter from the Company's independent public accountants in
customary form and covering such matters of the type customarily covered by
"cold comfort" letters and as Holders' Counsel or the managing underwriters
reasonably request;
(x) furnish, at the request of any seller of Registrable
Securities on the date such securities are delivered to the underwriters for
sale pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the registration statement with respect to
such securities becomes effective, an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as such seller or underwriters may reasonably request and are
customarily included in such opinions;
(xi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable but no later than 15 months after the
effective date of the registration statement, an earnings statement covering a
period of 12 months beginning after the effective date of the registration
statement, in a manner which satisfies the provisions of Section 11(a) of the
Securities Act;
(xii) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed; provided, that the applicable listing requirements are satisfied;
(xiii) keep each seller of Registrable Securities advised in
writing as to the initiation and progress of any registration under Section 3 or
4;
(xiv) provide officers' certificates and other customary closing
documents;
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(xv) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the NASD; and
(xvi) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated hereby and
cooperate with each seller of Registrable Securities to facilitate the
disposition of Registrable Securities pursuant thereto.
(b) Seller Information. The Company shall be entitled to require each
seller of Registrable Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 6(a)(vi), such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(a)(vi) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including without limitation the period referred to in Section 6(a)(ii)) by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 6(a)(vi) to and including the date when such
Holder shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 6(a)(vi).
SECTION 7. Registration Expenses
(a) The Company shall pay all expenses (other than underwriting discounts
and commissions) arising from or incident to the performance of, or compliance
with, this Agreement, including without limitation, (i) Commission, stock
exchange and NASD registration and filing fees, (ii) all fees and expenses
incurred in complying with securities or blue sky laws (including reasonable
fees, charges and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, engraving,
messenger and delivery expenses and (iv) the fees, charges and disbursements of
counsel to the Company and of its independent public accountants and any other
accounting and legal fees, charges and expenses incurred by the Company
(including without limitation any fees and expenses in connection with any "cold
comfort" letters and any special audits incident to or required by any
registration or qualification) regardless of whether such registration statement
is declared effective (collectively, "Registration Expenses").
(b) The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which securities of the same class
are then listed or the qualification for trading of the securities to be
registered in each inter-dealer quotation system in which securities of the same
class are then traded, and rating agency fees.
(c) In connection with each registration requested pursuant to Section 3,
the Company will reimburse Glenayre for the reasonable fees and disbursements of
its counsel.
SECTION 8. Indemnification; Contribution
(a) Indemnification by the Company. The Company agrees to indemnify, to the
full extent permitted by law, each Holder, its officers, directors, partners,
employees and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Holder from and against any and all
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losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and, subject to Section 8(c), reasonable fees, disbursements and
other charges of legal counsel) arising out of or based upon any untrue, or
allegedly untrue, statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or
arising out of or based upon 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, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such Holder expressly for
use therein. The Company shall also indemnify any underwriters of the
Registrable Securities, their officers, directors and employees and each Person
who controls such underwriters (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) Indemnification by Holders. In connection with any registration
statement in which a Holder is participating pursuant to Section 3 or 4, such
Holder shall furnish to the Company in writing such information with respect to
such Holder as the Company may reasonably request or as may be required by law
for use in connection with any such registration statement or prospectus and
such Holder agrees to indemnify, to the extent permitted by law, the Company and
any underwriter retained by the Company and their respective directors,
officers, employees and each Person who controls the Company or such underwriter
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as the foregoing indemnity from the Company to such Holder, but only with
respect to any such information furnished in writing by such Holder expressly
for use in such registration statement. Notwithstanding the provisions of this
Section 8(b), such Holder shall not be required to pay any indemnification in an
amount in excess of the net proceeds received by such Holder in the offering to
which such registration statement relates.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to any party with indemnification obligations hereunder (the
"Indemnifying Party") after the receipt by the Indemnified Party of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; provided that the
failure so to notify the Indemnifying Party shall not relieve the Indemnifying
Party of any liability that it may have to the Indemnified Party hereunder,
unless (and then solely to the extent that) the Indemnifying Party is materially
prejudiced thereby. If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be entitled
to participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and satisfactory to such Indemnified
Party. The Indemnified Party shall have the right to employ separate legal
counsel in any such action and participate in the defense thereof, but the fees,
disbursements and other charges of such legal counsel (other than reasonable
costs of investigation) shall be paid by the Indemnified Party unless (i) the
Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to
assume the defense of such action with legal counsel satisfactory to the
Indemnified Party in its reasonable judgment or (iii) the named parties to any
such action (including any impleaded parties) have been advised by such legal
counsel that either (A) representation of such Indemnified Party and the
Indemnifying Party by the same legal counsel would be inappropriate under
applicable standards of professional conduct or (B) there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Party. In either of such cases the Indemnifying
Party shall not have the right to assume the defense of such action on behalf of
such Indemnified Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld.
(d) Contribution. If the indemnification provided for in this Section 8
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
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as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative faults of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Sections 8(a), 8(b) and 8(c), any fees, charges
or expenses (including fees, disbursements and other charges of legal counsel)
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) 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 the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a Holder shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder in the offering to which such registration
statement relates exceeds the amount of any damages that such Holder has
otherwise been required to pay. 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.
(e) Survival. The indemnity and contribution covenants contained in this
Section 8 shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of a Holder, (ii) any sale of any
Registrable Securities pursuant to this Agreement and receipt by such Holder of
the proceeds thereof, or (iii) any termination of this Agreement for any reason,
including after the initial filing of the registration statement to which these
indemnity and contribution covenants relate.
SECTION 9. Rules 144 and 144A The Company covenants that it shall duly and
timely file any reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the Commission
thereunder and that it shall take such further action as a Holder may reasonably
request (including providing any information necessary to comply with Rules 144
and 144A under the Securities Act), all to the extent required from time to time
to enable a Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 or
Rule 144A under the Securities Act, as such rules may be amended from time to
time, or any similar rules or regulations hereafter adopted by the Commission.
The Company shall, upon the request of a Holder, deliver to such Holder a
written statement as to whether it has complied with such requirements. Without
limiting the foregoing, the Company agrees that it will:
(a) if required by law, maintain a registration statement (containing such
information and documents as the Commission shall specify) with respect to the
Common Stock under Section 12 of the Exchange Act and will timely file such
information, documents and reports as the Commission may require or prescribe
for companies whose stock has been registered pursuant to said Section 12;
(b) if a registration statement with respect to the Common Stock under
Section 12 is effective, or if required by Section 15(d) of the Exchange Act,
make whatever filings with the Commission or otherwise make generally available
to the public such financial and other information as may be necessary to enable
each Holder to be permitted to sell shares of such Registrable Securities
pursuant to the provisions of Rule 144 or 144A promulgated under the Securities
Act (or any successor rule or regulation thereto); and
(c) at any time when a Holder desires to make sales of any Registrable
Securities in reliance on Rule 144A under the Securities Act (or any successor
rule or regulation), provide such Holder and any prospective purchaser therefrom
9
with the information required by Rule 144A and otherwise cooperate with such
Holder in connection with such sale.
The Company represents and warrants that any registration statement or any
information document or report filed with the Commission in connection with the
foregoing or any information so made public shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements contained therein
not misleading. The Company agrees to indemnify and hold harmless (or to the
extent the same is not enforceable, make contribution to) each Holder , its
officers, directors, employees and agents and each broker, dealer or underwriter
(within the meaning of the Securities Act) acting for such Holder in connection
with any offering or sale by such Holder or any person, firm or corporation
controlling (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) such Holder and any such broker, dealer or
underwriter from and against any and all losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arising out of or resulting from any
breach of the foregoing representation or warranty, all on terms and conditions
comparable to those set forth in Section 9 of this Agreement.
SECTION 10. Miscellaneous
(a) Recapitalizations, Exchanges, Etc. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to the Common
Stock, to any and all shares of capital stock of the Company or any successor or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for or in substitution
of, the Common Stock and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof.
(b) No Inconsistent Agreements. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to Glenayre.
(c) Remedies. Glenayre, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, shall be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive in any action for specific performance the defense that a remedy at law
would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the prior written consent of Glenayre.
(e) Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopy, recognized
overnight courier service or personal delivery:
(i) if to the Company:
Multi-Link Telecommunications, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Chief Executive Officer
Telecopy: (000) 000-0000
10
(ii) if to Glenayre:
Glenayre Technologies, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
President & CEO
Telecopy: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five business
days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
registration rights and the other obligations of the Company contained in this
Agreement shall with respect to any Registrable Security be automatically
transferred to any subsequent holder of Registrable Securities (excluding any
Person who acquires such securities in a transaction with respect to which a
registration statement under the Securities Act is effective at the time or
pursuant to a sale complying with Rule 144 under the Securities Act).
Notwithstanding any transfer of such rights, all of the obligations of the
Company hereunder shall survive any such transfer and shall continue to inure to
the benefit of all transferees.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to the
principles of conflicts of law of such state.
(j) Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the holders of Registrable Securities shall be
enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered as of the day and year first above written.
MULTI-LINK TELECOMMUNICATIONS, INC.
By:
--------------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
GLENAYRE TECHNOLOGIES, INC.
By:
--------------------------------------
Xxxx X. Xxxxxxx
President & CEO
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