EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT is made and entered into as of December 31,
1999, between Netrix Corporation, a Delaware corporation (the "Company") and
AetherWorks Corporation ("AetherWorks"), in favor of the holders of common
stock, options and/or warrants of AetherWorks identified on Annex I attached
hereto. The Company proposes to issue shares of its common stock in connection
with the acquisition of AetherWorks pursuant to an Agreement and Plan of Merger
by and among the Company, AetherWorks and Nx1 Acquisition Corp. dated
concurrently herewith (the "Merger Agreement"). As an inducement to AetherWorks
to enter into the Merger Agreement, the Company agrees with each other party
hereto, for the benefit of such party and the other Holders (as defined below),
as follows:
1. DEFINITIONS.
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As used in this Agreement, the following capitalized terms shall have the
following meanings:
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"COMMON STOCK" means the Common Stock, par value $.05 per share, of the
Company, or any successor class thereto.
"COMMISSION" means the Securities and Exchange Commission.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section 2 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"HOLDERS" means Persons owning Transfer Restricted Securities.
"PERSON" means an individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" means the prospectus included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 2
hereof.
"TRANSFER RESTRICTED SECURITIES" means each share of Common Stock issued
pursuant to the Merger Agreement for shares of outstanding common stock of
AetherWorks or which is issuable upon exercise of the options and warrants
identified on Annex I, until the earlier of (a) the date on which such share of
Common Stock has been effectively registered under the Securities Act and
disposed of pursuant to and in accordance with an effective Shelf Registration
Statement, (b) the date on which such share of Common Stock is distributed to
the public pursuant to Rule 144 or any other applicable exemption under the
Securities Act without additional restriction upon public resale or (c) at such
time as such share of Common Stock may be sold by a Holder under Rule 144(k).
2. SHELF REGISTRATION. The Company shall use its commercially reasonable best
efforts to file with the Commission promptly after November 1, 2000 a
registration statement relating to the offer and sale of the Transfer Restricted
Securities by Holders from time to time pursuant to Rule 415 under the
Securities Act and in accordance with the methods of distribution set forth
therein, which registration statement may be substituted for by one or more
subsequent registration statements each relating to the offer and sale of the
Transfer Restricted Securities by Holders from time to time (as in effect from
time to time, the "Shelf Registration Statement"), and the Company shall use its
commercially reasonable best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission as soon as practicable after November
1, 2000, PROVIDED, HOWEVER, that the Company may delay such filing or
effectiveness under the circumstances and during the periods described in
Section 3 hereof. In addition, the Company shall use its commercially reasonable
best efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended for a period (the "Effectiveness Period") ending on the
earlier of November 1, 2002 (as such date may be extended by the length of each
Information Delay Period (as defined below) and by the length of each
Transaction Delay Period, (as defined below) if any) or when all the shares of
Common Stock covered by the Shelf Registration Statement cease to be Transfer
Restricted Securities.
3. DELAY PERIODS; SUSPENSION OF SALES.
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(a) If at any time prior to the expiration of the Effectiveness Period
counsel to the Company (which counsel shall be experienced in securities laws
matters) has determined in good faith (which determination is rendered in the
form of an opinion of such counsel) that it is reasonable to conclude that the
filing of the Shelf Registration Statement or the compliance by the Company with
its disclosure obligations in connection with the Shelf Registration Statement
may require the disclosure of information which the Board of Directors of the
Company has identified as material and which the Board of Directors has
determined that the Company has a BONA FIDE business purpose for preserving as
confidential, then the Company may delay the filing or the effectiveness of the
Shelf Registration Statement (if not then filed or effective, as applicable) and
shall not be required to maintain the effectiveness thereof or amend or
supplement the Shelf Registration Statement for a period (an "Information Delay
Period") expiring three business days after the earlier to occur of (A) the date
on which such material information is disclosed to the public or ceases to be
material or the Company is able to so comply with its disclosure obligations and
Commission requirements or (B) 45 days after the Company notifies the Holders of
such good faith determination. There shall not be more than four Information
Delay Periods during the Effectiveness Period, and there shall not be two
Information Delay Periods during any contiguous 135 day period.
(b) If at any time prior to the expiration of the Effectiveness Period
the Company is advised by a nationally recognized investment banking firm
selected by the Company that, in such firm's written reasonable opinion
addressed to the Company, sales of Common Stock pursuant to the Shelf
Registration Statement at such time would materially adversely affect any
immediately planned underwritten public equity financing by the Company of at
least $5 million, the Company shall not be required to maintain the
effectiveness of the Shelf Registration Statement or amend or supplement the
Shelf Registration Statement for a period (a "Transaction Delay Period")
commencing on the date of pricing of such equity financing and expiring three
business days after the earliest to occur of (i) the abandonment of such
financing or (ii) 90 days after the completion of such financing. There shall
not be more than two Transaction Delay Periods during the Effectiveness Period.
(c) A Transaction Delay Period and an Information Delay Period are
hereinafter collectively referred to as "Delay Periods" or a "Delay Period." The
Company will give prompt written notice (which notice shall include a copy of
the relevant opinion letter), in the manner prescribed by Section 8(b) hereof,
to each Holder of each Delay Period. Such notice shall be given (i) in the case
of a Transaction Delay Period, at least 20 days in advance of the commencement
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of such Delay Period and (ii) in the case of an Information Delay Period, as
soon as practicable after the Board of Directors makes the determination
referenced in Section 3(a). Such notice shall state to the extent, if any, as is
practicable, an estimate of the duration of such Delay Period. Each Holder, by
his acceptance of any Transfer Restricted Securities, agrees that (i) upon
receipt of such notice of an Information Delay Period it will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, (ii) upon receipt of such notice of a Transaction Delay
Period it will forthwith discontinue disposition of the Common Stock pursuant to
the Shelf Registration Statement and (iii) in either such case, will not deliver
any prospectus forming a part of the Shelf Registration Statement in connection
with any sale of Transfer Restricted Securities or Common Stock, as applicable
until the expiration of such Delay Period.
4. REGISTRATION PROCEDURES.
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In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the following provisions shall apply:
(a) The Company shall furnish to each Holder, promptly after filing
thereof with the Commission, a copy of the Shelf Registration Statement and each
amendment thereto or each amendment or supplement to the Prospectus included
therein.
(b) The Company shall take such action as may be reasonably necessary
so that (i) the Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement or amendment thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) the Shelf Registration and any amendment thereto
(in either case, other than with respect to written information furnished to the
Company by or on behalf of any Holder specifically for inclusion therein) does
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make any statement therein
not misleading and (iii) the Prospectus and any supplement thereto (in either
case, other than with respect to such information from Holders), does not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) The Company shall promptly advise the Holders of Transfer
Restricted Securities registered under the Shelf Registration Statement (which
advice pursuant to clauses (ii) - (iv) shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made)
and, if requested by such Persons, shall confirm such advice in writing:
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or of
the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes; and
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(iv) of the happening of any event that requires the making of
any changes in the Shelf Registration Statement or the Prospectus so
that, as of such date, the Shelf Registration Statement and the
Prospectus do not contain an untrue statement of a material fact and
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading.
(d) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall
use its commercially reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time.
(e) The Company shall furnish to each Holder of Transfer Restricted
Securities included under the Shelf Registration Statement, without charge, at
least one copy of the Shelf Registration Statement and each post-effective
amendment thereto, including all financial statements and schedules, documents
incorporated by reference therein and, if the Holder so requests in writing, all
exhibits (including exhibits incorporated therein by reference).
(f) The Company shall, during the Effectiveness Period, deliver to
each Holder of Transfer Restricted Securities included under the Shelf
Registration Statement, without charge, such reasonable number of copies of the
Prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request to facilitate the public sale or other disposition of the
Transfer Restricted Securities by the selling Holder.
(g) Prior to any public offering pursuant to the Shelf Registration
Statement, the Company shall use its commercially reasonable best efforts to
register or qualify or cooperate with the Holders of Transfer Restricted
Securities registered thereunder in connection with the registration and
qualification of such Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as such Holders reasonably request in
writing and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of such Transfer
Restricted Securities; PROVIDED, HOWEVER, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(h) Upon the occurrence of any event contemplated by Section 4(c)(ii)
- (iv), and subject to the provisions of Section 3, the Company shall file (and
use its commercially reasonable best efforts to have declared effective as soon
as possible) a post-effective amendment to the Shelf Registration Statement or
an amendment or supplement to the Prospectus or file any other required document
so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities registered under the Shelf Registration Statement, 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. Each Holder of Transfer
Restricted Securities registered under the Shelf Registration Statement agrees
by acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in
Section 4(c)(ii) - (iv) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until such Holder receives copies of the supplemented or amended
Prospectus contemplated by this Section 4(h), or until such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and such
Holder has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus. If so directed by the Company, each
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Holder will 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 Transfer Restricted Securities current at the time of receipt of
such notice.
(i) The Company shall use its commercially reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and make
generally available to its security holders or otherwise provide in accordance
with Section 11(a) of the Securities Act, as soon as practicable after the
effective date of the Shelf Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act.
(j) The Company may require each Holder of Transfer Restricted
Securities to be registered under the Shelf Registration Statement to furnish to
the Company such information regarding such Holder and the distribution of such
Holder's securities thereunder as the Company may from time to time reasonably
require for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Transfer Restricted Securities of any Holder
that fails to furnish such information within a reasonable time after receiving
such request.
(k) The Company shall make available at reasonable times for
inspection by the Holders of the Transfer Restricted Securities all financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries; and cause the Company's officers, directors and employees
to supply all information reasonably requested by any Holder of at least $2.5
million in value of Common Stock in connection with the Shelf Registration
Statement subsequent to the filing thereof as is customary for similar due
diligence examinations; PROVIDED, HOWEVER, that any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by such Holders
unless (i) such disclosure is required to be made in connection with a court
proceeding or required by law (provided that the disclosing party provides prior
written notice to the Company and cooperates with the Company, at the Company's
expense, to take reasonable and lawful actions to avoid and/or minimize the
extent of such disclosure) or (ii) such information becomes available to the
public other than through a wrongful act by such Person; and PROVIDED, FURTHER,
that the foregoing inspection and information gathering shall, to the greatest
extent possible, be coordinated on behalf of the Holders entitled thereto by one
counsel designated by and on behalf of such Holders.
(l) The Company shall use its commercially reasonable best efforts,
subject to any applicable rules thereto, to cause all Common Stock included
among the Transfer Restricted Securities to be listed on each securities
exchange on which the Common Stock is listed.
5. REGISTRATION EXPENSES.
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(a) Except as otherwise provided in Section 6, the Company shall
bear all expenses incurred in connection with the performance of or compliance
with its obligations under Sections 2 and 4 hereof, 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
and fees and disbursements of counsel for the Company and all independent
certified public accountants, and other persons retained by the Company (all
such expenses being herein called "Registration Expenses"). Registration
Expenses shall also include the Company's 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 or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the Common Stock to be registered on the Nasdaq Stock Market. Each
Holder will pay any discounts and commissions incurred upon the sale of
securities by it under the Shelf Registration Statement.
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6. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Company agrees to indemnify and hold harmless each Holder
(for purposes of this Section 6, "Holder" shall include the officers, directors,
partners, employees and agents, and each Person, if any, who controls any Holder
("controlling Person") within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act), from and against any and all losses, claims,
damages, expenses or liabilities, joint or several (and actions, proceedings,
suits and litigation in respect thereof), whatsoever, as the same are incurred,
to which such Holder or any such controlling Person may become subject, under
the Securities Act, the Exchange Act or any other statute or at common law or
otherwise (i) insofar as such losses, claims, damages, expenses or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement, or any
preliminary Prospectus or Prospectus (as from time to time amended and
supplemented) or arise out of or are based upon the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein (with respect to any preliminary Prospectus or
Prospectus, in the light of the circumstances under which they were made), not
misleading; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, or any
preliminary Prospectus or Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder specifically for inclusion therein
and PROVIDED, FURTHER, that the Company shall not be liable to any such Holder
under the indemnity agreement in this Section 6(a)(i) with respect to any
preliminary Prospectus or Prospectus (as such Prospectus has then been amended
or supplemented) to the extent that any such loss, liability, claim, damage or
expense of such Holder arises out of a sale of Transfer Restricted Securities by
such Holder to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (or of the
Prospectus as then amended or supplemented) if the Company has previously
furnished copies thereof to such Holder a reasonable time in advance and the
loss, liability, claim, damage or expense of such Holder results from an untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in the preliminary Prospectus (or the Prospectus) which
was corrected in the Prospectus (or the Prospectus as amended or supplemented)
or (ii) to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon any action or failure to act by such Holder that
is found in a final judicial determination (or a settlement tantamount thereto)
to constitute bad faith, willful misconduct or gross negligence on the part of
such Holder. The indemnity agreement in this Section 6(a) shall be in addition
to any liability which the Company may have at common law or otherwise.
(b) Each Holder agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers and each other Person, if
any, who controls the Company within the meaning of the Securities Act, to the
same extent as the foregoing indemnity from the Company to the Holders, but only
with respect to statements or omissions, if any, made in conformity with
information relating to such Holder furnished in writing by such Holder
specifically for use in the Shelf Registration Statement, or any preliminary
Prospectus or the Prospectus or any amendment thereof or supplement thereto;
PROVIDED, HOWEVER, that the obligation to indemnify will be individual to each
Holder and will be limited to the amount of net proceeds received by such Holder
from the sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, suit or proceeding, such
indemnified party shall, if a claim in respect thereof is to be made against one
or more indemnifying parties under this Section 6, notify each party against
whom indemnification is to be sought in writing of the commencement thereof (but
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under Sections 6(a) or (b) unless and to the extent
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that it has been prejudiced in a material respect by such failure or from the
forfeiture of substantial rights and defenses). In case any such action, suit or
proceeding is brought against any indemnified party, and it notifies an
indemnifying party or parties of the commencement thereof, the indemnifying
party or parties will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party,
which may be the same counsel as counsel to the indemnifying party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action at the expense of the indemnifying party, (ii) the indemnifying parties
shall not have employed counsel reasonably satisfactory to such indemnified
party to take charge of the defense of such action within a reasonable time
after notice of commencement of the action or (iii) such indemnified party or
parties shall have reasonably concluded, after consultation with counsel to such
indemnified party or parties, that a conflict of interest exists which makes
representation by counsel chosen by the indemnifying party not advisable (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses of one additional counsel shall be borne by
the indemnifying parties. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Anything in this Section 6 to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent.
(d) In order to provide for just and equitable contribution in
any case in which (i) an indemnified party makes claim for indemnification
pursuant to this Section 6, but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
the express provisions of this Section 6 provide for indemnification in such
case, or (ii) contribution under the Securities Act may be required, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid as a result of such losses, claims, damages,
expenses or liabilities (or actions, suits, proceedings or litigation in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand, in connection with the statements or omissions
that resulted in such losses, claims, damages, expenses or liabilities, as well
as any other relevant equitable considerations. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by a Holder,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, expenses or liabilities (or actions, suits, proceedings or litigation
in respect thereof) referred to above in this Section 6(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing or defending any such action,
claim, suit, proceeding or litigation. Notwithstanding the provisions of this
Section 6(d), no Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the Transfer Restricted Securities
sold by such indemnifying party and distributed to the public were offered to
the public exceeds the amount of any damages that such indemnifying party 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 12(f) of the Securities Act)
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shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each Person, if
any, who controls the Company within the meaning of the Securities Act, each
executive officer of the Company and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to this Section
6(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit, proceeding or litigation against such party
in respect to which a claim for contribution may be made against another party
or parties under this Section 6(d), notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have hereunder or otherwise than under this
Section 6(d), or to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may have at common
law or otherwise.
7. RULES 144 AND 144A. The Company shall use commercially reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to
8. Rules 144 and 144A. The Company covenants that it will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time, to enable such Holder to sell
securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)).
9. MISCELLANEOUS.
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(a) AMENDMENTS AND WAIVERS. 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
written consent of Holders of a majority of the Transfer Restricted Securities
issued and outstanding at such time. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions of Section 6 hereof or any amendment,
modification or supplement to the same or that affects Holders of Transfer
Restricted Securities differently shall require the consent of each Holder of
Transfer Restricted Securities whose rights are directly affected by such
action.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the address of such Holder set
forth on Annex 1 attached hereto;
(2) if to the Company, at:
Netrix Corporation
00000 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
(3) if to AetherWorks, at:
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AetherWorks Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: President
or to such other addresses as the recipient party has specified to the sending
party by prior written notice to the sending party.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; when answered back, if faxed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(c) REMEDIES. In the event of a breach by the Company or by a Holder
of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(d) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(e) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders in this Agreement.
(f) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of their respective heirs, executors, administrators, successors,
legal representatives and assigns. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of Holders are also for the benefit of, and enforceable by, any
subsequent Holder.
(g) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the Commonwealth of Virginia, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the Commonwealth of Virginia or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Virginia.
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IN WITNESS WHEREOF, the Company and AetherWorks have executed this
Registration Rights Agreement as of the date first written above.
NETRIX CORPORATION
By: /s/ Xxxxxx X. Francesco
Name: Xxxxxx X. Francesco
Title: Chairman & CEO
AETHERWORKS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President & CEO
10
ANNEX 1
INVESTORS
Number of shares Number of shares Number of shares
of Common of Common Common Stock
Name and Address Stock Owned Underlying Options Underlying Warrants
---------------- ----------- ------------------ -------------------
