EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "Agreement") is
entered into as of March 24, 1998 by and among ▇▇▇▇▇▇▇ Technologies,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇"), and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇ (each, a "Holder" and collectively, the "Holders").
R E C I T A L S
▇. ▇▇▇▇▇▇▇, MML Acquisition Corp., a Delaware corporation
and the Holders are parties to a Share Exchange Deed dated as of March
24,1998 (the "Exchange Agreement"), pursuant to which the Holders will
exchange all of the outstanding shares of MAPMicro, Ltd. ("the Company")
for shares of common stock, $.10 par value, of ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ Common
Stock"); and
B. This Agreement is the Registration Rights Agreement
referred to in Sections 5.2.1.5 and 5.6.3 of the Exchange Agreement and,
pursuant thereto, must be entered into by the parties as a condition
precedent to the consummation of the transactions contemplated by the
Exchange Agreement.
A G R E E M E N T
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 agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Eligible Resale Date" shall mean ten days following
the date on which ▇▇▇▇▇▇▇ has filed with the SEC consolidated financial
statements of ▇▇▇▇▇▇▇ including the results of operations of ▇▇▇▇▇▇▇ and
the Company combined, of at least 30 days, in accordance with
Regulation S-X under the Exchange Act and SEC releases and
interpretations governing pooling-of-interests accounting treatment in
business combinations.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"Form S-3" shall mean such form under the Securities
Act as in effect on the date hereof or any successor registration form
under the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference to
other documents filed by ▇▇▇▇▇▇▇ with the SEC.
"Holder" shall mean a holder of Registrable
Securities. On the date hereof, the Holders are the only persons
holding Registrable Securities.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of
the Registrable Securities covered by the Registration Statement and by
all other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in
such Prospectus.
"Register," "registered" and "registration" shall mean
and refer to a registration effected by preparing and filing a
Registration Statement and taking all other actions that are necessary
or appropriate in connection therewith, and the declaration or ordering
of effectiveness of such Registration Statement by the SEC.
"Registration Expenses" shall have the meaning set
forth in Section 4.
"Registrable Securities" shall mean the shares of
▇▇▇▇▇▇▇ Common Stock (i) issued pursuant to the Exchange Agreement, and
(ii) issued as a dividend or other distribution with respect to or in
exchange for or in replacement of the shares referenced in (i) above;
provided, however, that Registrable Securities shall not include (i) any
shares of ▇▇▇▇▇▇▇ Common Stock that have previously been sold to the
public, (ii) have been sold in a private transaction (excluding the
issuance of the ▇▇▇▇▇▇▇ Common Stock pursuant to the Exchange
Agreement), (iii) are eligible for sale to the public under Rule 144, or
(iv) are subject to the Escrow (as defined in the Exchange Agreement).
"Registration Statement" shall mean any registration
statement of ▇▇▇▇▇▇▇ in compliance with the Securities Act that covers
Registrable Securities pursuant to the provisions of this Agreement,
including, without limitation, the Prospectus, all amendments and
supplements to such Registration Statement, including all post-effective
amendments, all exhibits and all material incorporated by reference in
such Registration Statement.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any similar successor rule, as the same shall be in
effect from time to time.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, or any similar successor rule, as the same shall be in
effect from time to time.
"Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
"SEC" shall mean the Securities and Exchange
Commission.
"Shelf Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
2. Form S-3 Registration.
(a) As soon as practicable, but no later than 20
days, following the Eligible Resale Date, ▇▇▇▇▇▇▇ shall file a
Registration Statement on Form S-3 providing for the sale pursuant to
Rule 415 (a "Shelf Registration Statement"), and/or any similar rule
that may be adopted by the SEC, of Registrable Securities by Holders.
▇▇▇▇▇▇▇ shall use reasonable efforts to provide 10 days' notice to all
of the Holders at the Company's address of the anticipated filing date
of a Shelf Registration Statement under this Section 2(a), and such
notice shall request all information required from a Holder to
participate in the Shelf Registration Statement so that such Holder may
participate in such registration. After the Registration Statement has
become effective, ▇▇▇▇▇▇▇ shall use commercially reasonable efforts to
keep such Registration Statement continuously effective for 60 days.
(b) In addition to the Shelf Registration Statement
referred to in Section 2(a), ▇▇▇▇▇▇▇ shall, no later than October 1,
1998, file a second Shelf Registration Statement providing for the sale
of Registerable Securities by Holders. ▇▇▇▇▇▇▇ shall use reasonable
efforts to provide 10 days' notice to all of the Holders at the
Company's address of the anticipated filing date of a Shelf Registration
Statement under this Section 2(b), and such notice shall request all
information required from a Holder to participate in the Shelf
Registration Statement so that such Holder may participate in such
registration. After the Registration Statement has become effective,
▇▇▇▇▇▇▇ shall use commercially reasonable efforts to keep such
Registration Statement continuously effective for 60 days.
(c) ▇▇▇▇▇▇▇ shall not have the obligation to
register securities under this Agreement unless the Holder provides
and/or confirms in writing prior to or after the filing of the
Registration Statement such information (including, without limitation,
information as to the number of Registrable Securities that such Holder
has sold pursuant to any such Registration Statement from time to time)
as ▇▇▇▇▇▇▇ reasonably requests in connection with such Registration
Statement.
(d) Notwithstanding the foregoing, for a period not
to exceed 90 days in any 12-month period, ▇▇▇▇▇▇▇ shall not be obligated
to prepare and file, or be prevented from delaying or abandoning, the
Registration Statement required hereunder if ▇▇▇▇▇▇▇, in its good faith
judgment, reasonably believes that the filing or maintenance of such
Registration Statement would require the disclosure of material non-
public information regarding ▇▇▇▇▇▇▇ and, accordingly, that the filing
thereof, at the time requested, or the offering of ▇▇▇▇▇▇▇ Common Stock
pursuant thereto, would materially and adversely affect (A) a pending or
scheduled public offering or private placement of securities of ▇▇▇▇▇▇▇
or any of its subsidiaries, (B) an acquisition, merger, consolidation or
similar transaction by or of ▇▇▇▇▇▇▇ or any of its subsidiaries,
(C) preexisting and continuing negotiations, discussions or pending
proposals with respect to any of the foregoing transactions, or (D) the
financial condition of ▇▇▇▇▇▇▇ in view of the disclosure of any pending
or threatened litigation, claim, assessment or governmental
investigation which might be required thereby. The reason for such
delay shall be confirmed by a certificate of ▇▇▇▇▇▇▇'▇ Chairman or
President, subject to confidentiality restrictions, and no such delay
shall shorten the 60-day effective period of such Registration Statement
once it is filed and declared effective.
In the event that ▇▇▇▇▇▇▇, in good faith, reasonably
believes that such conditions are continuing after such 90-day period,
it may, with the consent of the Holders of a majority of the Registrable
Securities subject (or to be subject) to the Registration Statement,
which consent shall not be unreasonably withheld, extend such 90-day
period for an additional 30 days. Any further delay shall require the
consent of the Holders of all such shares.
3. Registration Procedures. In connection with ▇▇▇▇▇▇▇'▇
registration obligations pursuant to Section 2 hereof, ▇▇▇▇▇▇▇ will use
its diligent efforts to effect such registration to permit the sale of
the Registrable Securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto
▇▇▇▇▇▇▇ will:
(a) prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities and use its
diligent efforts to cause such Registration Statement to become
effective; provided that, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, ▇▇▇▇▇▇▇ will use
reasonable efforts to furnish to the Holders and their counsel, copies
of all such documents proposed to be filed at least twenty days prior
thereto, and ▇▇▇▇▇▇▇ will not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which
any such Holder shall reasonably object within such twenty day period;
provided, further, that ▇▇▇▇▇▇▇ will not name or otherwise provide any
information with respect to any Holder in any Registration Statement or
Prospectus without the express written consent of such Holder, unless
required to do so by the Securities Act and the rules and regulations
thereunder;
(b) prepare and file with the SEC such amendments,
post-effective amendments and supplements to the Registration Statement
and the Prospectus as may be necessary to comply with the provisions of
the Securities Act and the rules and regulations thereunder with respect
to the disposition of all securities covered by such Registration
Statement;
(c) promptly notify the selling Holders (i) when the
Registration Statement, 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 SEC for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information, (iii) of the issuance by the SEC 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
▇▇▇▇▇▇▇ of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and
(v) of the happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes
in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements
therein not misleading in light of the circumstances then existing;
(d) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(e) furnish to each selling Holder, without charge,
at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(f) deliver to each selling Holder, without charge,
such reasonable number of conformed copies of the Registration Statement
(and any post-effective amendment thereto) and such number of copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto (and any documents incorporated by reference
therein) as such Holder may reasonably request; ▇▇▇▇▇▇▇ consents to the
use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders in connection with the offer and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(g) prior to any offering of Registrable Securities
covered by a Registration Statement, register or qualify or cooperate
with the selling Holders in connection with the registration or
qualification of such Registrable Securities for offer and sale under
the securities or blue sky laws of such jurisdictions as any such
selling Holder reasonably requests, and use its reasonable efforts to
keep each such registration or qualification effective, including
through new filings, or amendments or renewals, during the period such
Registration Statement is required to be kept effective pursuant to the
terms of this Agreement; and do any and all other acts or things
necessary or advisable to enable the disposition in all such
jurisdictions reasonably requested by the Holders of the Registrable
Securities covered by such Registration Statement, provided that under
no circumstances shall ▇▇▇▇▇▇▇ be required in connection therewith or as
a condition thereof to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions;
(h) cooperate with the selling Holders to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, free of any and all restrictive
legends, such certificates to be in such denominations and registered in
such names as such Holders may request;
(i) upon the occurrence of any event contemplated by
Section 3(c)(v) above, prepare a supplement or post-effective amendment
to the Registration Statement or the 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, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(j) make generally available to the holders of
▇▇▇▇▇▇▇'▇ outstanding securities earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, no later than 60 days
after the end of any 12 month period (or 90 days, if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best
efforts underwritten offering, or, if not sold to underwriters in such
an offering, (ii) beginning with the first month of ▇▇▇▇▇▇▇'▇ first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said 12 month period;
(k) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by each
Registration Statement from and after a date not later than the
effective date of such Registration Statement;
(l) use its best efforts to cause all Registrable
Securities covered by each Registration Statement to be listed, subject
to notice of issuance, prior to the date of the first sale of such
Registrable Securities pursuant to such Registration Statement, on each
securities exchange on which the ▇▇▇▇▇▇▇ Common Stock is then listed,
and admitted to trading on the Nasdaq National Market, if the ▇▇▇▇▇▇▇
Common Stock is then admitted to trading on the Nasdaq National Market;
(m) enter into such agreements (including
underwriting agreements in customary form containing, among other
things, reasonable and customary indemnities) and take such other
actions as a majority of the Holders shall reasonably request in order
to expedite or facilitate the disposition of such Registrable
Securities; and
(n) cooperate with the selling Holders and the
managing underwriter or underwriters in their marketing efforts with
respect to the sale of the Registrable Securities, including
participation by ▇▇▇▇▇▇▇ management in "road show" presentations.
Each Holder agrees that, upon receipt of any notice from ▇▇▇▇▇▇▇ of the
happening of any event of the kind described in Section 3(c)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable
Securities under the Prospectus related to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 3(i) hereof, or until it
is advised in writing by ▇▇▇▇▇▇▇ that the use of the Prospectus may be
resumed. It shall be a condition precedent to the obligations of
▇▇▇▇▇▇▇ to take any action pursuant to this Section 3 with respect to
the Registrable Securities of any selling Holder that such Holder shall
furnish to ▇▇▇▇▇▇▇, upon reasonable request by ▇▇▇▇▇▇▇, such information
regarding itself and the Registrable Securities held by it as shall be
required by the Securities Act to effect the registration of such
Holder's Registrable Securities.
4. Registration Expenses. All expenses incident to any
registration to be effected hereunder and incident to ▇▇▇▇▇▇▇'▇
performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, National Association of Securities
Dealers, Inc., stock exchange and qualification fees, fees and
disbursements of ▇▇▇▇▇▇▇'▇ counsel and of independent certified public
accountants of ▇▇▇▇▇▇▇ (including the expenses of any special audit
required by or incident to such performance), the fees of one counsel
and one accountant representing the Holders in such offering, expenses
of any underwriters that are customarily requested in similar
circumstances by such underwriters (excluding discounts, commissions or
fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities, which will be borne by the Holders), all such
expenses being herein called "Registration Expenses," will be borne by
▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ will also pay its internal expenses, the expense of
any annual audit and the fees and expenses of any person retained by
▇▇▇▇▇▇▇.
5. Holders' Covenants. Each Holder covenants and agrees:
(a) To sell all Registrable Securities only through
a broker-dealer approved by ▇▇▇▇▇▇▇ in writing, which approval shall not
be unreasonably delayed or withheld; and
(b) During the time the Registration Statement filed
pursuant to Section 2(a) or 2(b) is effective, no Holder shall sell more
than 10% of his Registrable Securities on any one trading day, or more
than 25% of his Registrable Securities in any five consecutive trading
days. Each Holder understands and agrees these manner of sale
requirements are entered into for the benefit of ▇▇▇▇▇▇▇ and the other
Holders.
6. Indemnification.
(a) Indemnification by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ agrees to
indemnify and hold harmless each Holder of Registrable Securities, its
officers, directors, partners and employees and each person who controls
such Holder (within the meaning of Section 15 of the Securities Act)
from and against any and all losses, claims, damages and liabilities
(including any investigation, legal or other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted) (collectively,
"Damages") to which such Holder may become subject under the Securities
Act, the Exchange Act or other federal or state securities law or
regulation, at common law or otherwise, insofar as such Damages arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any amendment or supplement
thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and (iii) any violation or alleged violation by
▇▇▇▇▇▇▇ of the Securities Act, the Exchange Act or any state securities
or blue sky laws in connection with the Registration Statement,
Prospectus or preliminary prospectus or any amendment or supplement
thereto, provided that ▇▇▇▇▇▇▇ will not be liable to any Holder to the
extent that such Damages arise from or are based upon any untrue
statement or omission (x) based upon written information furnished to
▇▇▇▇▇▇▇ by any Holder expressly for the inclusion in such Registration
Statement, (y) made in any preliminary prospectus if any Holder failed
to deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the party asserting
the claim underlying such Damages and such Prospectus would have
corrected such untrue statement or omission and (z) made in any
Prospectus if such untrue statement or omission was corrected in an
amendment or supplement to such Prospectus and such Holder failed to
deliver such amendment or supplement prior to or concurrently with the
sale of Registrable Securities to the party asserting the claim
underlying such Damages.
(b) Indemnification by Holder of Registrable
Securities. Each Holder of Registrable Securities whose Registrable
Securities are sold under a Prospectus which is a part of a Registration
Statement agrees to indemnify and hold harmless ▇▇▇▇▇▇▇, its directors
and each officer who signed such Registration Statement and each person
who controls ▇▇▇▇▇▇▇ (within the meaning of Section 15 of the Securities
Act), and each other Holder of Registrable Securities whose Registrable
Securities are sold under the Prospectus which is a part of such
Registration Statement (and such Holder's officers, directors and
employees and each person who controls such Holder within the meaning of
Section 15 of the Securities Act), under the same circumstances as the
foregoing indemnity from ▇▇▇▇▇▇▇ to each Holder of Registrable
Securities to the extent that such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement of a
material fact or omission of a material fact that was made in the
Prospectus, the Registration Statement, or any amendment or supplement
thereto, in reliance upon and in conformity with information relating to
such Holder furnished in writing to ▇▇▇▇▇▇▇ by such Holder expressly for
use therein, provided that in no event shall the aggregate liability of
any selling Holder of Registrable Securities exceed the amount of the
net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. ▇▇▇▇▇▇▇ and
the selling Holders shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same
extent as customarily furnished by such persons in similar
circumstances.
(c) Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder will (i) give prompt notice
to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person and
not of the indemnifying party unless (A) the indemnifying party has
agreed to pay such fees or expenses, (B) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (C) in the reasonable judgment
of such person and the indemnifying party, based upon written advice of
their respective counsel, a conflict of interest may exist between such
person and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such person). If such
defense is not assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld). No
indemnified party will be required to consent to entry of any judgment
or enter into any settlement which does not include as an unconditional
term thereof the giving by all claimants or plaintiffs to such
indemnified party of a release from all liability in respect to such
claim or litigation. Any indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to
pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim. As
used in this Section 6(c), the terms "indemnifying party", "indemnified
party" and other terms of similar import are intended to include only
▇▇▇▇▇▇▇ (and its officers, directors and control persons as set forth
above) on the one hand, and the Holders (and their officers, directors,
partners, employees, attorneys and control persons as set forth above)
on the other hand, as applicable.
(d) Contribution. If for any reason the foregoing
indemnity is unavailable, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party on the one hand and the indemnified party on
the other, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable
considerations. Notwithstanding the foregoing, no Holder shall be
required to contribute any amount in excess of the amount such Holder
would have been required to pay to an indemnified party if the indemnity
under Section 6(b) hereof was available. 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. The obligation of any
person to contribute pursuant to this Section 6(d) shall be several and
not joint.
(e) Timing of Payments. An indemnifying party shall
make payments of all amounts required to be made pursuant to the
foregoing provisions of this Section 6 to or for the account of the
indemnified party from time to time promptly upon receipt of bills or
invoices relating thereto or when otherwise due or payable.
(f) Survival. The indemnity and contribution
agreements contained in this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of a
participating Holder, its officers, directors, partners, attorneys,
agents or any person, if any, who controls such Holder as aforesaid, and
shall survive the transfer of such Registrable Securities by such
Holder.
7. Preparation; Reasonable Investigation. In connection
with the preparation and filing of a Registration Statement pursuant to
the terms of this Agreement:
(a) ▇▇▇▇▇▇▇ shall, with respect to a Registration
Statement filed pursuant to Section 2, give the Holders of such
Registrable Securities so registered, their underwriters, if any, and
their respective counsel and accountants the opportunity to participate
in the preparation of such Registration Statement (other than reports
and proxy statements incorporated therein by reference and lawfully and
properly filed with the SEC) and each Prospectus included therein or
filed with the SEC, and each amendment thereof or supplement thereto;
and
(b) ▇▇▇▇▇▇▇ shall give the Holders of such
Registrable Securities so registered, their underwriters, if any, and
their respective counsel and accountants such reasonable access to its
books and records and such opportunities to discuss the business of
▇▇▇▇▇▇▇ with its officers and the independent public accountants who
have certified its financial statements as shall be necessary, in the
opinion of such Holders or such underwriters, to conduct a reasonable
investigation within the meaning of Section 11(b)(3) of the Securities
Act.
8. Rule 144. ▇▇▇▇▇▇▇ covenants that it will use
commercially reasonable efforts to file, on a timely basis, the reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and it will
take such further action as any Holder may reasonably request
(including, without limitation, compliance with the current public
information requirements of Rule 144(c) and Rule 144A), all to the
extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act
within the limitation of the conditions provided by Rule 144, or any
similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, Maxwell will deliver to such holder a written
statement, signed by the Chairman or President of ▇▇▇▇▇▇▇, verifying
that it has complied with such information and requirements.
9. Specific Performance. Each Holder, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, will be entitled to specific performance
of its rights under this Agreement. ▇▇▇▇▇▇▇ 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 the defense in any action for specific performance that
a remedy at law would be adequate.
10. Notices. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed,
postage prepaid, sent by facsimile or delivered personally by hand or
nationally recognized courier addressed (a) if to a Holder, at the
address of the Company, or at such other address as such Holder or
permitted assignee shall have furnished to ▇▇▇▇▇▇▇ in writing, (b) if to
▇▇▇▇▇▇▇, at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, or such other address
provided to the Holders in writing. All such notices and other written
communications shall be effective on the date of mailing, facsimile
transfer or delivery.
11. Successors and Assigns: Assignment of Rights. The
rights and benefits of a Holder hereunder may not be assigned to a
transferee or assignee, without the consent of ▇▇▇▇▇▇▇; provided,
however, that, no later than the 10th day prior to the filing of the
Registration Statement under Section 2 hereof, the rights and benefits
of a Holder hereunder may be transferred in connection with a transfer
or assignment of any Registrable Securities held by such Holder (i) by
gift to immediate family members of such Holder, or trusts or other
entities for the sole benefit thereof, or (ii) by gift to any entity in
which such Holder, his or her immediate family members, or trusts or
other entities for the sole benefit thereof beneficially own all of the
voting securities; provided, however, that in each case, the transferee
executes an instrument pursuant to which the transferee agrees to be
bound by the terms and conditions hereof as a Holder, and such other
documents related to the Merger Agreement as ▇▇▇▇▇▇▇ or its counsel may
reasonably require, after which, such transferee shall be deemed a
"Holder" hereunder. Any transfer of Registrable Securities, and rights
hereunder, shall be subject to compliance with applicable securities
laws and the restrictions contained in the Agreement.
12. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected
or impaired thereby.
13. Entire Agreement; Amendment; Waiver. This Agreement,
the Exchange Agreement and the other agreements contemplated thereby
constitute the full and entire understanding and agreement among the
parties with regard to the subjects hereof and thereof. Without
limiting the foregoing, the rights of the Holders to registration
pursuant to the terms of this Agreement shall be subject to the
limitations on resale contained in Exchange Agreement. Neither this
Agreement nor any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by ▇▇▇▇▇▇▇ and the
holders of at least 51% of the Registrable Securities and any such
amendment, waiver, discharge or termination shall be binding upon all
the parties hereto, but in no event shall the obligation of any party
hereto be materially increased, except upon the written consent of such
party.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be original, and all of
which together shall constitute one instrument.
15. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware
without giving effect to principles of conflicts of laws thereof.
16. No Third Party Beneficiaries. The covenants and
agreements set forth herein are for the sole and exclusive benefit of
the parties hereto and their respective successors and assigns and such
covenants and agreements shall not be construed as conferring, and are
not intended to confer, any rights or benefits upon any other persons.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By: _______________________
Name: -----------------------
Title: _______________________
By: -----------------------
Name: _______________________
Title: _______________________
HOLDERS:
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE A
SCHEDULE OF AFFILIATED HOLDERS
Holder's Name/Address/Telecopier No. Number of Shares of ▇▇▇▇▇▇▇
Common Stock Issued Pursuant
to the Merger Agreement
____________________________________ ____________________________
SCHEDULE B
SCHEDULE OF NON-AFFILIATED HOLDERS
Holder's Name/Address/Telecopier No. Number of Shares of ▇▇▇▇▇▇▇
Common Stock Issued Pursuant
to the Merger Agreement
____________________________________ ____________________________
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