REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Rights Agreement"), entered
into as of March 29, 2002 by and between ePlus Technology, Inc. (the "Investor")
and Elcom International, Inc., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Company has agreed to issue to the Investor warrants to
purchase up to an aggregate of Three Hundred Thousand (300,000) shares of Common
Stock of the Company (the "Shares"), at such price and upon such terms as set
forth in that certain Warrant, dated of even date herewith, by and between the
Company and Investor (the "Warrant"); and
WHEREAS, pursuant to the terms of and in partial consideration for, the
Investor's commitment to enter into the Warrant, the Company has agreed to
provide the Investor with certain registration rights with respect to the
Shares, as set forth in this Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Warrant
and this Rights Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the Company and the Investor agree as follows:
Certain Definitions. Capitalized terms used in this Rights Agreement and
not otherwise defined herein shall have the same meaning ascribed to them in the
Warrant. The following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act of 1933, as
amended (the "Securities Act").
"Investor" shall include the Investor and any permitted assignee or
transferee of the rights under the Warrant to whom the registration rights
conferred by this Rights Agreement have been transferred in compliance with
Section 9 of this Rights Agreement.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing an appropriate registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean, subject to the terms of the Warrant,
all expenses to be incurred by the Company in connection with Investor's
exercise of its registration rights under this Rights Agreement, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and expenses,
reasonable fees and disbursements of one (1)
counsel to Investor, reasonably acceptable to the Company, for a "due diligence"
examination of the Company and review of the Registration Statement (as defined
below), and the expense of any special audits; provided, however, that in no
event shall the aggregate amount paid by the Company under this Rights Agreement
and under the Warrant exceed fifteen thousand dollars ($15,000) and
"Registration Expenses" shall not include underwriter commissions or discounts,
or expenses, fees and disbursements of counsel to Investor in connection with
the registration.
"Registrable Securities" shall mean any Shares or other securities
issued or issuable to the Investor or any holder or transferee upon the exercise
of the Warrant until: (i) a registration statement under the Securities Act
covering the offering of such Shares has been declared effective by the
Commission and such Shares have been disposed of pursuant to such effective
registration statement, (ii) such Shares are sold under circumstances in 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) such Shares have
been otherwise transferred 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 all such Shares may be sold without any time,
volume or manner limitation pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act.
2. Registration Requirements. The Company shall use commercially
reasonable efforts to effect the registration of the Registrable Securities
contemplated by the Warrant (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as would permit or
facilitate the sale or distribution of all the Registrable Securities in the
manner (including manner of sale) and in all states reasonably requested by the
warrant holder for purposes of maximizing the proceeds realizable by the
Investor from such sale or distribution. Such commercially reasonable efforts by
the Company shall include without limitation the following:
(a) Subject to the terms and conditions of this Rights
Agreement, the Company shall file with the Commission: no later than sixty (60)
days from the date of the execution of the Warrant, an appropriate registration
statement under the Securities Act for the registration of the resale by the
Investor of the Registrable Securities (the "Registration Statement"), which
Registration Statement shall have been declared effective by the Commission no
later than one hundred eighty (180) days from the Effective Date. Furthermore,
at the time of filing of the Registration Statement, the Company shall file: (A)
such blue sky filings as shall have been requested by the Investor; and (B) any
required filings with the National Association of Securities Dealers, Inc. or
exchange or market where the Shares are traded. The Company shall use
commercially reasonable efforts to have all filings declared effective as
promptly as practicable.
(b) (i) If the Company: (A) fails to file the Registration
Statement complying with the requirements of this Rights Agreement within sixty
(60) days from the date of the execution of the Warrant or if the Registration
Statement has not become
effective on or before one hundred eighty (180) days from the Effective Date,
the Investor shall have, in addition to and without limiting any other rights it
may have at law, in equity or under the Warrant or this Rights Agreement
(including the right to specific performance), the right to receive, as
liquidated damages, the payments as provided in subparagraph (ii) of this
Section.
(ii) In the event the Company fails to obtain the
effectiveness of a Registration Statement within the time period set forth in
Section 2(a), the Company shall pay to the Investor an amount equal to: (A) One
Hundred Dollars ($100), in cash, for each day of the sixty (60) day period
following the date by which such Registration Statement was required to have
been declared effective and (B) Two Hundred Dollars ($200), in cash, for each
day after such first sixty (60) day period. In addition to the foregoing, in the
event the Company fails to maintain the effectiveness of a Registration
Statement (or the use of the underlying prospectus) throughout the period set
forth in Section 3(a), other than suspensions as set forth in Section 4, the
Company shall pay to the Investor an amount equal to Two Hundred Dollars ($200),
in cash, per day, in which a suspension has occurred.
(c) The Company shall enter into such customary agreements
and take all such other reasonable actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities.
3. Registration Procedures. The Company will keep the Investor
advised, in writing, as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use commercially reasonable
efforts to:
(a) Keep such registration effective for the period ending
sixty (60) months, as extended pursuant to Section 4 hereof, following the
Effective Date of the Warrant, or until such shorter period that will terminate
when there are no Registrable Securities outstanding;
(b) Furnish such number of prospectuses and amendments and
supplements thereto, and other documents incident thereto as the Investor from
time to time may reasonably request;
(c) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period; cause the
related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
or supplement to such prospectus;
(d) Notify the Investor and its counsel (as designated in
writing by the Investor) promptly, and confirm such notice (a "Notice") in
writing: (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or related prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event as a result of which the prospectus
included in the Registration Statement (as then in effect) contains any 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 (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances under
which they were made) not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate or that there exists circumstances not yet disclosed to the
public which make further sales under such Registration Statement inadvisable
pending such disclosure and post-effective amendment;
(e) Upon the occurrence of any event contemplated by Section
3(d)(ii)-(vi) and immediately upon the expiration of any Blocking Period (as
defined in Section 4), prepare, if the occurrence of such event or period
requires such preparation, a supplement or post-effective amendment to the
Registration Statement or related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements, in light of the
circumstances under which they were made, not misleading;
(f) Obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement, or the lifting of any suspension of
the qualification of any of the Registrable Securities for sale in any
jurisdiction within a commercially reasonable period of time;
(g) Cause all Registrable Securities subject to the
Registration Statement at all times to be registered or qualified for offer and
sale under the securities or blue sky laws of such domestic jurisdictions as any
Investor reasonably requests in writing; use commercially reasonable efforts to
keep each such registration or qualification effective, including through new
filings or amendments or renewals, during the period the Registration Statement
is required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, however,
that the Company will not be required to qualify to do business or take any
action that would subject it to taxation or general service of process in any
jurisdiction where it is not then so qualified or subject;
(h) Cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities in
accordance with the chosen method or methods of distribution; and
(i) Cause all Registrable Securities included in such
Registration Statement to be listed, by the date of first sale of Registrable
Securities pursuant to such Registration Statement, on the principal securities
exchange or automated interdealer system or other electronic quoting system on
which the same type of securities of the Company are then listed or traded.
4. Suspensions of Effectiveness. The Company may suspend
dispositions under the Registration Statement and notify the Investor that it
may not sell the Registrable Securities pursuant to any Registration Statement
or prospectus (a "Blocking Notice") if the Company's management determines, in
its good faith judgment, that the Company's obligation to ensure that such
Registration Statement and prospectus are current and complete would require the
Company to take actions that might reasonably be expected to have a materially
adverse effect on the Company and its shareholders (a "Blocking Period");
provided that such suspension pursuant to a Blocking Notice or Prospectus
Inadequacy Notice (as defined below) or as a result of the circumstances
described in Section 3(d)(ii)-(vi) may not exceed one hundred twenty (120) days
(whether or not consecutive) in any twelve (12) month period. The Investor
agrees by acquisition of the Registrable Securities that, upon receipt of a
Blocking Notice or "Prospectus Inadequacy Notice" from the Company of the
existence of any fact of the kind described in the following sentence, the
Investor shall not dispose of, sell or offer for sale the Registrable Securities
pursuant to the Registration Statement until such Investor receives: (i) copies
of the supplemented or amended prospectus, or until counsel for the Company
shall have determined that such disclosure is not required due to subsequent
events, (ii) notice in writing (the "Advice") from the Company that the use of
the prospectus may be resumed, and (iii) copies of any additional or
supplemental filings that are incorporated by reference in the prospectus.
Pursuant to the immediately preceding sentence, the Company may provide such
Prospectus Inadequacy Notice to the Investor upon the determination by the
Company of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement, the
prospectus, any amendment or supplement thereto, or any document incorporated by
reference therein, untrue in any material respect, or that requires the making
of any additions to or changes in the Registration Statement or the prospectus,
in order to make the statements therein not misleading in any material respect.
If so directed by the Company in connection with any such notice, each Investor
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Investor's possession, of the prospectus
covering such Registrable Securities that was current immediately prior to the
time of receipt of such notice. In the event the Company shall give any such
Blocking Notice or
Prospectus Inadequacy Notice, the time regarding the effectiveness of such
Registration Statement set forth in Section 3(a) shall be extended by one and
one-half (1-1/2) times the number of days during the period from and including
the date of the giving of such Blocking Notice or Prospectus Inadequacy Notice
to and including the date when the Investor shall have received the copies of
the supplemented or amended prospectus, the Advice and any additional or
supplemental filings that are incorporated by reference in the prospectus.
Delivery of a Blocking Notice or Prospectus Inadequacy Notice and the related
suspension of any Registration Statement shall not constitute a default under
this Rights Agreement.
5. Indemnification.
(a) Company Indemnity. The Company will indemnify the
Investor, each of its officers, directors and partners, and each person
controlling the Investor, within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act of 1934, as amended (the "Exchange Act") and
the rules and regulations thereunder with respect to which registration,
qualification or compliance has been effected pursuant to this Rights Agreement,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus (including any related
registration statement, notification or the like or any amendment thereto)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or any state securities law
or in either case, any rule or regulation thereunder applicable to the Company
and relating to action, or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse the
Investor, each of its officers, directors and partners, and each person
controlling the Investor, each such underwriter and each person who controls any
such underwriter, for any reasonable legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission (or alleged untrue
statement or omission) that is made in reliance upon and in conformity with
written information furnished to the Company by the Investor and stated to be
specifically for use therein. In addition to any other information furnished in
writing to the Company by the Investor, the information in the Registration
Statement concerning the Investor under the captions "Selling Shareholders" (or
any similarly captioned Section containing the information required pursuant to
Item 507 of Regulation S-K promulgated pursuant to the Securities Act) and "Plan
of Distribution" (or any similarly captioned Section containing information
required pursuant to Item 508 of Regulation S-K) shall be deemed information
furnished in writing to the Company by the Investor to the extent it conforms to
information supplied in writing by the Investor or on behalf thereof. The
indemnity agreement contained in this Section 5(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld).
(b) Investor Indemnity. The Investor will, if Registrable
Securities held by it are included in the securities as to which such
registration, qualification or compliance, is being effected, indemnify the
Company, each of its directors, officers, partners, and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and the rules
and regulations thereunder, each other Investor (if any), and each of their
officers, directors and partners, and each person controlling such other
Investor (if any), and each of their officers, directors, and partners, and each
person controlling such other Investor against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement (or any amendment thereto) or prospectus or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statement therein not misleading, and
will reimburse the Company and its directors, officers and partners, or control
persons for any reasonable legal or any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus in reliance upon
and in conformity with written information furnished to the Company by the
Investor and stated to be specifically for use therein, and provided that no
Investor shall be liable under this indemnity for an amount in excess of the
proceeds received by the Investor from the sale of the Registrable Securities
pursuant to such Registration Statement; provided, however, that nothing
contained herein shall limit the Investor's obligation to provide
indemnification pursuant to the Warrant. In addition to any other information
furnished in writing to the Company by the warrant holder, the information in
the Registration Statement concerning the Investor under the captions "Selling
Shareholders" (or any similarly captioned Section containing the information
required pursuant to Item 507 of Regulation S-K promulgated pursuant to the
Securities Act) and "Plan of Distribution" (or any similarly captioned Section
containing information required pursuant to Item 508 of Regulation S-K) shall be
deemed information furnished in writing to the Company by the Investor to the
extent it conforms to information supplied in writing by the Investor or on
behalf thereof. The indemnity agreement contained in this Section 5(b) shall not
apply to amounts paid in settlement of any such claims, losses, damages or
liabilities if such settlement is effected without the written consent of the
Investor (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under
this Section 5 (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 in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be Xxxxxx, Halter & Xxxxxxxx LLP, or
otherwise shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, 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 materially and adversely affected by such failure to
provide notice. The Indemnifying Party shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such Indemnified Party.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, (which shall not be
unreasonably withheld or delayed) consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
6. Contribution. If the indemnification provided for in Section 5
hereof is unavailable to the Indemnified Party in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or, liabilities: (i) as between the Company and the Investor on the one hand and
the underwriters on the other, in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Investor on the one hand
or underwriters, as the case may be, on the other from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the
Investor 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 and (ii) as between the Company on the one
hand and the Investor on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of the Investor 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 benefits received by the Company on the one hand and the
Investor on the other, shall be deemed to be in the same proportion as the
proceeds from the offering received by the Company from the initial sale of the
Registrable Securities by the Company to the Investor pursuant to this Rights
Agreement bear to the proceeds received by the Investor from the sale of
Registrable Securities pursuant to the Registration Statement. The relative
fault of the Company on the one hand and of the Investor on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Investor.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 paragraphs. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraphs
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no Investor shall be required to
contribute any amount in excess of the amount by which the Investor, the total
price at which the shares of Common Stock offered by the Investor and
distributed to the public, or offered to the public, exceeds the amount of any
damages that the Investor has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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.
7. Survival. The indemnity and contribution agreements contained in
Section 5 and Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of the Warrant or any underwriting agreement,
(ii) any investigation made by or on behalf of any Indemnified Party or by or on
behalf of the Company and (iii) the consummation of the sale or successive
resales of the Registrable Securities.
8. Information by Investor. The Investor shall promptly furnish to
the Company such information regarding the Investor and the distribution
proposed by such Investor as the Company may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Rights Agreement. All
information provided to the Company by the Investor shall be accurate and
complete in all material respects and the Investor shall promptly notify the
Company if any such information becomes incorrect or incomplete.
9. Transfer or Assignment of Rights. Neither this Rights Agreement
nor any rights of the Investor or the Company hereunder may be assigned by
either party to any other person. Notwithstanding the foregoing, upon prior
written notice to the Company, the Investor's rights and obligations under this
Rights Agreement may be assigned, in whole or in part, to any affiliate of the
Investor (a "Permitted Transferee"), and the rights and obligation of the
Investor under this Rights Agreement shall inure to the benefit of, and be
enforceable by and against, any such Permitted Transferee.
10. Miscellaneous.
(a) Entire Agreement. This Rights Agreement, together with
the Warrant, contains the entire understanding and agreement of the parties
relating to the registration of Registrable Securities, and may not be modified
or terminated except by a written agreement signed by both parties.
(b) Notices. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder or
which are given
with respect to this Rights Agreement shall be in writing and shall be
personally served or deposited in the mail, registered or certified, return
receipt requested, postage prepaid, or delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram, telex
or facsimile, addressed as set forth below, or to such other address as such
party shall have specified most recently by written notice:
If to the Company, to:
Elcom International, Inc.
00 Xxxxxx Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to (which shall not constitute notice) to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Investor, to:
ePlus, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile No.: 000-000-0000
With a copy (which shall not constitute notice) to:
============================
----------------------------
Attention: ___________________
Facsimile No.: ________________
Subject to the Warrant, as applicable, notice shall be deemed given on the date
of service or transmission if personally served or transmitted by telegram,
telex or facsimile during normal business hours of the recipient. Notice
otherwise sent as provided herein shall be deemed given on the third business
day following the date mailed or on the second business day following delivery
of such notice by a reputable air courier service.
(c) Gender of Terms. All terms used herein shall be deemed
to include the feminine and the neuter, and the singular and the plural, as the
context requires.
(d) GOVERNING LAW; CONSENT OF JURISDICTION; WAIVER OF JURY
TRIAL. THIS RIGHTS AGREEMENT AND THE VALIDITY AND
PERFORMANCE OF THE TERMS
HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OR CHOICE OF
LAW. THE PARTIES HERETO HEREBY AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING
DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THIS RIGHTS AGREEMENT SHALL BE
LITIGATED ONLY IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO CONSENT TO THE JURISDICTION AND
VENUE OF THE FOREGOING COURTS AND CONSENT THAT ANY PROCESS OR NOTICE OF MOTION
OR OTHER APPLICATION TO SAID COURTS OR A JUDGE THEREOF MAY BE SERVED INSIDE OR
OUTSIDE THE COMMONWEALTH OF MASSACHUSETTS BY REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS RIGHTS
AGREEMENT (AND SERVICE SO MADE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE
SAME HAS BEEN POSTED AS AFORESAID) OR BY PERSONAL SERVICE OR IN SUCH OTHER
MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE PARTIES HERETO
HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION
PURSUANT TO THIS RIGHTS AGREEMENT.
(e) Titles. The titles used in this Rights Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Rights Agreement.
(f) Rule 144. The Company will use commercially reasonable
efforts to file all reports required to be filed by it under the Securities Act
and the Exchange Act and it will take such further action as holders of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable the Investor to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. If it any
time the Company is not required to file such reports, it will, upon the request
of the Investor, make publicly available other information so long as necessary
to permit sales pursuant to Rule 144. Upon the request of the Investor, the
Company will deliver to the Investor a written statement as to whether it has
complied with such requirements.
(g) Counterparts. This Rights Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one (1) and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Rights Agreement
to be duly executed as of the date first above written.
EPLUS TECHNOLOGY, INC. ELCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: SVP, Secretary and Treasurer Title: Chief Financial Officer
