Exhibit 4.(A)2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the 25 day of
February, 2002, by and among ViryaNet Limited., a company organized under the
laws of the State of Israel (the "Company"), and the other persons listed on
Exhibit A hereto and executing this Agreement (the "Shareholders"), which
persons were, prior to the closing of the Merger Agreement (as defined below),
the holders of all issued and outstanding shares of capital stock of iMedeon
Inc., a Georgia corporation ("iMedeon").
W I T N E S S E T H:
WHEREAS, the Company, iMedeon, the Shareholders and ViryaNet Acquisition,
Inc., a Georgia corporation ("Merger Sub") and wholly owned subsidiary of
ViryaNet, Inc., a wholly owned subsidiary of the Company ("US Sub"), have
entered into a Agreement and Plan of Merger, dated as of February 25, 2002 (the
"Merger Agreement"), pursuant to which Merger Sub shall merge with and into
iMedeon and iMedeon shall thereby become a wholly owned subsidiary of US Sub and
the holders of capital stock of iMedeon shall become holders of capital stock of
the Company; and
WHEREAS, a condition to the closing of the Merger Agreement (the "Closing")
is that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereby agree as follows:
1. Definitions
Terms used in this Agreement and not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement. As used in this
Agreement, the following terms have the following meanings:
1.1. The term "Companies Law" shall mean the Israeli Companies Law
1999, as amended.
1.2. The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
1.3. The term "Form F-3" shall mean such form under the Securities
Act, as in effect on the date hereof or any 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 the Company with the
SEC.
1.4. The term "Holder" shall mean any person owning Registrable
Securities (as defined below) or any assignee or transferee
thereof.
1.5. The term "Israeli Securities Law" shall mean the Israeli
Securities Law - 1968, as amended.
1.6. The terms "register", "registered" and "registration" refer to
a registration effected by preparing and filing a registration
statement or similar document in compliance with the
Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document or
the equivalent actions under the laws of another jurisdiction.
1.7. The term "Registrable Securities" shall mean Ordinary Shares
constituting the Initial Consideration and any Additional
Consideration Shares (if issued) which are not Locked-Up as
contemplated under Section 8.2 of the Merger Agreement,
provided, however, that if the Company files a registration
statement which constitutes a Piggyback Registration under
Section 4 herein prior to such time as the Initial
Consideration and any Additional Consideration Shares are no
longer Locked-Up, such Locked-Up Ordinary Shares shall be
deemed Registrable Securities for purposes of Section 4;
provided further, however, that any Ordinary Shares which can
be disposed of pursuant to Rule 144k promulgated under the
Securities Act ("Rule 144") shall not be deemed Registrable
Securities hereunder.
1.8. The term "SEC" shall mean the Securities and Exchange
Commission.
1.9. The term "Securities Act" shall mean the Securities Act of
1933, as amended.
1.10 The term "Investor" shall mean an investor in a private
placement transaction closed by the Company within six months
of the date hereof.
2. Demand Registration
2.1. If the Company shall receive, at any time starting six (6)
months after the Closing Date, a written request from the
Holders of a majority of the Registrable Securities (the
"Initiating Holders") to file a registration statement under
the Securities Act covering the registration of all or part of
the Registrable Securities, then the Company shall:
2.1.1. within twenty (20) days of the receipt thereof, give
written notice of such request to all other Holders;
and
2.1.2. use its best efforts to effect as soon as practicable,
the registration under the Securities Act of all
Registrable Securities which are specified in such
written request together with the Registrable
Securities of non-Initating Holders joining in such
request pursuant to written requests received by the
Company from such non-Initiating Holders within 20 days
after the receipt of the Company's written notice.
2.2. If the Company shall furnish to the Holders requesting
registration pursuant to this Section 2 a certificate signed
by the Chief Executive Officer of the Company or the Chairman
of the Company's Board of Directors stating that in the good
faith judgment of the Board of Directors of the Company it
would be seriously detrimental to the Company and its
shareholders for such registration to be effected at such
time, the Company shall have the right to defer such filing
for a period of not more than one hundred and twenty (120)
days after receipt of
the request of the Initiating Holders, provided that such
right to delay a request shall be exercised by the Company not
more than once in any 12 month period.
2.3. In the case of any registration effected pursuant to this
Section 2 the Company shall have the right to designate the
managing underwriter(s) in any underwritten offering.
2.4. The Company and all Holders participating in such underwritten
registration shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected
for such underwriting.
2.5. Notwithstanding any other provision of this Section 2 (except
for Section 2.2), if the underwriter of a registration being
made pursuant to Section 2 advises the Initiating Holders in
writing that marketing factors require a limitation of the
number of Registrable Securities to be included in such
underwritten registration, then the Initiating Holders shall
so advise all Holders of Registrable Securities which would
otherwise be underwritten, and then there shall be excluded
from such registration and underwriting, to the extent
necessary to satisfy such limitation, Registrable Securities
held by the Holders pro rata to the number of shares held by
each Holder that has requested to be included in such
registration.
2.6. Limitation on Number of Demand Registrations.
2.6.1. The Company shall not be required to effect more than
one (1) demand registration pursuant to Section 2. If
the Company shall be eligible to use a registration
statement on Form F-3 in connection with the demand
registration under this Section 2, such registration
may be effected by the Company on Form F-3.
2.6.2. Notwithstanding the foregoing, (1) if the Initiating
Holders have requested, and the Company has effected,
the single demand registration allowed pursuant to this
Section 2 within 12 months of the date of this
Agreement and (2) from and after 12 months from the
date of this Agreement, the Company is not eligible to
use a registration statement on Form F-3 in connection
with a shelf registration for the resale of the
Company's shares, then the Holders will be entitled to
one (1) additional demand registration pursuant to this
Section 2; provided, however that the Company shall not
be required to effect a registration if the market
price of the Registrable Securities to be registered
thereunder is less than $750,000.
2.7. The Company may not cause any other registration of securities
for sale for its own account (other than a registration
effected solely to implement an employee benefit plan) to be
initiated after delivery of a demand for a registration
requested pursuant to this Section 2 and to become effective
less than one hundred and twenty (120) days after the
effective date of a registration made pursuant to such demand
under this Section 2.
2.8. The Initiating Holders may withdraw their request for such
demand registration at any time and they shall not be deemed
to have exhausted any rights to make a
demand registration in the future, provided that they
reimburse the Company for all of its costs and expenses
incurred in connection with such withdrawn demand registration
(collectively, "Company Expenses"), if such registration has
in fact been cancelled. Notwithstanding the above, if the
Initiating Holders withdraw their request based upon material
adverse information relating to the Company or its condition,
business, prospects or general securities market conditions
which is different from that generally known to the
Shareholders making the demand at the time of their request,
the Initiating Holders shall not have to reimburse the Company
for the Company Expenses.
3. Shelf Registration
3.1. From such time as the Company becomes eligible to file
registration statements on Form F-3, at the request of the
Initiating Holders to file a shelf registration statement
pursuant to Rule 415 under the Securities Act with the SEC,
the Company shall:
3.1.1. within twenty (20) days after receipt of any such
request, give written notice of the proposed
registration to all other Holders; and
3.1.2. use its best efforts to effect as soon as practicable,
the registration under the Securities Act of all
Registrable Securities which are specified in such
written request together with the Registrable
Securities of non-Initating Holders joining in such
request pursuant to written requests received by the
Company from such non-Initiating Holders within 20 days
after the receipt of the Company's written notice.
3.2. The Company undertakes that it will, once having qualified for
registration on Form F-3, use its best efforts to comply with
all necessary filings and other requirements so as to maintain
such qualification.
3.3. After a registration requested pursuant to Section 3, the
Company may not cause any other registration of securities for
sale for its own account (other than a registration effected
solely to implement an employee benefit plan) to be initiated
and to become effective less than 120 days after the effective
date of any registration requested pursuant to Section 3.1.
3.4. Notwithstanding the above, the Company shall not be required
to effect a registration pursuant to Section 3 if:
3.4.1. the market price of the Registrable Securities to be
registered thereunder is less than $750,000;
3.4.2. if the Company has, within the six (6) month period
preceding the date of such request, already effected
one registration under Section 3, or two registrations
under Section 3 in the previous twelve-month period; or
3.4.3. if Form F-3 is not available for such offering by the
Holders;
3.4.4. if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer or
Chairman of the Board of the Company
stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for
such Form F-3 registration to be effected at such time,
in which event the Company shall have the right to
defer the filing of the Form F-3 registration statement
for a period of not more than one hundred and twenty
(120) days after receipt of the request of the Holders
under this Section 3; provided, however, that the
Company shall not utilize this right more than once in
any twelve (12) month period.
4. Piggyback Registrations
4.1. Whenever the Company proposes to register for its own account
or for any other person other than in a registration pursuant
to Section 2 or 3 any of its securities under either the
Securities Act (other than a registration in connection with a
merger or acquisition on Form F-4 or S-4 or one relating
solely to employee benefit plans under Form S-8 or any similar
form) or the Israeli Securities Laws, it will promptly, and at
least thirty (30) days prior to the initial filing of a
registration statement with the SEC or Israeli equivalent,
give written notice to the Holders of its intention to effect
such a registration and will include in such registration all
the securities held by the Holders (subject to the provisions
of Section 4.3 hereto) with respect to which the Company
receives written requests for inclusion therein within twenty
(20) days after receipt of such notice by the Holders (a
"Piggyback Registration").
4.2. In the case of any registration initiated by the Company, the
Company shall have the right to designate the managing
underwriter in any underwritten offering and any Holders
participating in such underwritten registration shall enter
into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting.
4.3. If (i) a Piggyback Registration is an underwritten offering of
the Company's securities and the underwriter advises the
Company in writing that marketing factors require a limitation
of the number of Registrable Securities to be underwritten, or
(ii) the Investors piggyback on a demand registration by the
Holders under this Agreement and the underwriter advises the
Company in writing that marketing factors require a limitation
of the number of Registrable Securities to be registered in
such offering, the Company will include its securities in such
registration in the following order:
(a) if the Piggyback Registration is initiated by the
Company:
(i) first, all shares proposed to be included by the
Company; and
(ii) second, all Registrable Securities proposed to be
included by the Holders and all Registrable
Securities proposed to be included by the
Investors (the "Investor Registrable Securities");
pro rata, based on the aggregate number of the
Company's securities held by the Holders and the
Investors (irrespective of whether or not all
Holders and Investors propose to include their
securities in such
offering). For avoidance of doubt, for purposes of
determining pro rata amounts, if the Holders
collectively hold 30% of the aggregate number of
Registrable Securities and Investor Registrable
Securities (collectively, the "Aggregate
Registrable Securities"), then at least 30% of the
Aggregate Registrable Securities included by the
Company pursuant to this section shall be
Registrable Securities, irrespective of whether
all Holders have requested to participate in such
offering (with participating Holders being
entitled to include additional Registrable
Securities). Similarly, if the Investors
collectively hold 70% of the Aggregate Registrable
Securities, then at least 70% of the Aggregate
Registrable Securities included by the Company
pursuant to this Section shall be Investor
Registrable Securities, irrespective of whether
all Investors have requested to participate in
such offering (with participating Investors being
entitled to include additional Investor
Registrable Securities).
(b) if the Piggyback Registration is not initiated by the
Company:
(i) first, all Registrable Securities proposed to be
included by the Holders and all Investor
Registrable Securities proposed to be included by
the Investors; provided, that if all such
securities cannot be included, the Company shall
include Registrable Securities and Investor
Registrable Securities pro rata, as determined in
subsection (a)(ii) above; and
(ii) second, all other securities of the Company or any
other shareholders proposed to be included in
such offering.
5. Obligations of the Company. Whenever required hereunder to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
5.1. Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best
efforts to cause such registration statement to become
effective in accordance with the time periods indicated above,
and, upon the request of the Initiating Holders, registered
thereunder, keep such registration statement effective for a
period of up to nine months or until the distribution
contemplated in the Registration Statement has been completed;
5.2. Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in
connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by
such registration statement;
5.3. Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
5.4. Register and qualify the securities covered by such
registration statement under such other securities laws of
such jurisdictions as shall be reasonably requested by the
Holders, as the case may be;
5.5. In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement,
in usual and customary form, with terms generally satisfactory
to the managing underwriter of such offering. Each Holder or
other shareholder participating in such underwriting shall
also enter into and perform its obligations under such an
agreement;
5.6. Notify each Holder covered by such registration statement at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing;
5.7. Cause all Registrable Securities registered pursuant hereto to
be listed on each securities exchange on which similar
securities issued by the Company are then listed;
5.8. Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for
all such Registrable Securities not later than the effective
date of such registration; and
5.9. Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to Section 2 hereof, on the
date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective,
(i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company,
in form and substance as is customarily given by independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of
Registrable Securities.
6. Expenses of Registration
6.1. The Company shall bear and pay the expenses incurred in
connection with any registration, filing or qualification of
Registrable Securities for each Holder, including (without
limitation) all registration, filing, and qualification fees,
printers and accounting fees and the reasonable fees and
disbursements of one counsel for the selling Holders,
excluding underwriting discounts and commissions relating to
the sale of Registrable.
7. Furnishing of Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this
Agreement with respect to the securities of any selling Holder that
such Holder shall furnish to the Company such information as may be
required to be included in the registration statement under the
Securities Act
regarding itself, the Registrable Securities held by it and the
intended method of disposition of such securities as shall be required
to effect the registration of such securities.
8. Indemnification and Contribution
8.1. The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, each Holder, any underwriter for such
Holder, each person, if any, who controls the Holder or such
underwriter, and each of such Holder's partners, shareholders,
officers, directors, employees, legal counsel and accountants,
from and against any and all losses, claims, damages,
liabilities, and charges, joint or several ("Claims"), to
which any of them may be subject under the Securities Act, the
Exchange Act, the Israeli Securities Law, the Companies Law,
or any other statute (whether U.S. or Israeli) or at common
law, insofar as such Claims arise out of, are based upon, or
are in connection with (i) any untrue statement of any
material fact contained in any registration statement or
prospectus, in each case, as amended or supplemented, under
which such securities were sold, or (ii) 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 (iii) any other violation by the Company of
the Securities Act, the Exchange Act, the Israeli Securities
Law, the Companies Law or any state or foreign jurisdiction
securities laws in connection with each such registration, and
shall reimburse each such person entitled to indemnification
for any legal or other expenses reasonably incurred by such
person in connection with investigating or defending any such
Claim, as and when such expenses are incurred; provided,
however, that the Company shall not be liable to any such
person in any such case to the extent that any such claim
arises out of or is based upon any untrue statement or
omission made in such registration statement or prospectus in
reliance upon and in conformity with written information
furnished to the Company by such person and/or any person
acting on its behalf specifically for use in such registration
statement or prospectus and provided further, that this
indemnity shall not apply to amounts paid pursuant to any
settlement effected without the consent of the party entitled
to indemnification hereunder, which consent shall not be
unreasonably withheld.
8.2. Each Holder selling shares under a registration statement (the
"Selling Holder") shall indemnify and hold harmless, to the
fullest extent permitted by law, the Company, any underwriter
for the Company, and each person, = if any, who controls the
Company or such underwriter and each of the Company's or
underwriter's officers, directors, employees, legal counsel
and accountants, from and against any and all Claims to which
any of them may be subject under the Securities Act, the
Exchange Act, the Israeli Securities Law, the Companies Law,
or any other statute (whether U.S. or Israeli) or at common
law, insofar as such Claims arise out of, are based upon, or
are in connection with (i) any untrue statement made by such
Selling Holder of any material fact contained in any
registration statement or prospectus, in each case, as amended
or supplemented, under which such securities were sold, or
(ii) any omission or alleged omission made by such Selling
Holder to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse the Company or each such
person entitled to indemnification for any legal or other
expenses reasonably incurred by the Company or such person in
connection with investigating or defending any such Claim, as
and when such expenses are incurred; provided, however, that
such Selling Holder shall be liable to the Company or any such
person in any such case only to the extent that any such claim
arises out of or is based upon any untrue statement or
omission made in such registration statement or prospectus in
reliance upon and in conformity with written information
furnished to the Company by such Selling Holder and/or any
person acting on such Selling Holder's behalf specifically for
use in such registration statement or prospectus and provided
further, that this indemnity shall not apply to amounts paid
pursuant to any settlement effected without the consent of the
party entitled to indemnification hereunder, which consent
shall not be unreasonably withheld. The indemnification
provided by such Selling Holder shall be limited to the amount
of the net proceeds received by such Selling Holder from the
sale of the securities registered in such registration. The
obligation of a Holder to indemnify the Company or any other
person or entity pursuant to this Section 8.2 shall be several
but not joint.
8.3. Promptly after receipt by any person entitled to
indemnification under Section 8.1 or Section 8.2, as the case
may be, of notice of the commencement of any action,
proceeding, or investigation in respect of which indemnity may
be sought as provided above, such party (the "Indemnitee")
shall notify the party from whom indemnification is claimed
(the "Indemnitor"). The Indemnitor shall promptly assume the
defense of the Indemnitee with counsel reasonably satisfactory
to such Indemnitee, and the fees and expenses of such counsel
shall be at the sole cost and expense of the Indemnitor. The
Indemnitee will cooperate with the Indemnitor in the defense
of any action, proceeding, or investigation for which the
Indemnitor assumes the defense, provided, however, that if the
defendants in any action include both the Indemnitee and the
Indemnitor and there is a conflict of interests which would
prevent counsel for the Indemnitor from also representing the
Indemnitee, the Indemnitee shall have the right to select one
separate counsel to participate in the defense of such action
on behalf of such indemnified party or parties. The Indemnitor
shall not be liable for the settlement by the Indemnitee of
any action, proceeding, or investigation effected without its
consent, which consent shall not be unreasonably withheld. The
Indemnitor shall not enter into any settlement in any action,
suit, or proceeding to which the Indemnitee is a party, unless
such settlement includes a general release of the Indemnitee
with no payment by the Indemnitee of consideration and without
an admission of liability.
8.4. The parties agree to notify promptly each other of the
commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with
the sale of any Registrable Securities held by the Holders, or
any preliminary prospectus or registration statement relating
to any sale of any Registrable Securities, or of any other
litigation or proceedings to which this Section 8 is
applicable of which they became aware.
8.5. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting
agreement shall prevail.
8.6. The obligations of the Company and the Holders under this
Section 8 shall survive the completion of any offering of
Registrable Securities in a registration statement under this
Agreement.
8.7. If for any reason the foregoing indemnity is unavailable, or
is insufficient to hold harmless an Indemnitee (except as
specifically provided therein), then the Indemnitor shall
contribute to the amount paid or payable by the Indemnitee as
a result of such losses, claims, damages, liabilities or
expenses (a) in such proportion as is appropriate to reflect
the relative benefits received by the Indemnitor on the one
hand and the Indemnitee on the other from the registration or
(b) if the allocation provided by clause (a) above is not
permitted by applicable law, or provides a lesser sum to the
Indemnitee than the amount hereinafter calculated, in such
proportion as is appropriate to reflect the relative fault of
the Indemnitor and the Indemnitee as well as any other
relevant equitable considerations; provided that in no event
shall any contribution by a Holder hereunder exceed the net
proceeds from the offering received from such Holder. 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.
9. Reports Under the Exchange Act
With a view to making available to the Holders the benefits of Rule
144 promulgated under the Securities Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or
pursuant to a registration on Form F-3, the Company agrees to:
9.1. make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
9.2. take such action as is necessary to enable the Holders to
utilize Form F-3 for the sale of their Registrable Securities;
9.3. file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act;
9.4. furnish to any Holder, so long as such Holder owns any
Registrable Securities, forthwith upon being so requested (i)
a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and
the Exchange Act, or that it qualifies as a registrant whose
securities may be resold pursuant to Form F-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual
or, to the extent applicable, quarterly report of the Company
and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably
requested in availing any Holder of any
rule or regulation of the SEC which permits the selling of any
Registrable Securities without registration or pursuant to
such form; and
9.5. comply with all other necessary filings and other requirements
so as to enable the Holders and any transferee thereof to sell
Registrable Securities under Rule 144 under the Securities Act
(or any similar rule then in effect).
9.6. use its best efforts to maintain the listing of its Ordinary
Shares on the Nasdaq National Market ("Nasdaq"), and should
its Ordinary Shares be delisted from Nasdaq, to cause the
reinstatement of the Ordinary Shares to listing on Nasdaq,
including through the pursuit of the formal appeal process
established by Nasdaq.
10. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be
assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities, provided: (a) the Company
is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are
being assigned; and (b) such transferee or assignee agrees in writing
to be bound by and subject to all the terms and conditions of this
Agreement.
11. Additional Registration Rights. Following the first anniversary of the
Closing Date, the Company shall use reasonable efforts to negotiate
additional registration rights for such Holders who are not then
entitled to sell their shares under Rule 144.
12. Expiration of Registration Rights. The registration rights contained
herein shall expire 5 (five) years after the Closing Date.
13. Miscellaneous.
13.1. Each of the parties hereto shall perform such further acts and
execute such further documents as may reasonably be necessary
to carry out and give full effect to the provisions of this
Agreement and the intentions of the parties as reflected
thereby.
13.2. This Agreement shall be construed in accordance with, and
governed in all respects by, the internal laws of the State of
New York (without giving effect to principles of conflicts of
laws). Each party to this Agreement consents to the exclusive
jurisdiction and venue of the courts of the State of New York.
13.3. Except as otherwise expressly limited herein and subject to
the provisions of Section 10 above, the provisions hereof
shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of
the parties hereto.
13.4. This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Agreement may be
amended and the observance of any term hereof may be waived
(either prospectively or retroactively and either generally or
in a particular instance) only with the written consent of the
holders of the majority of the Registrable Shares and of the
Company, provided, that any amendment or
waiver that affects a Holder differently or adversely shall
require such Holder's written consent. For the avoidance of
doubt, the Company may execute any other registration rights
agreement and such agreement, if and when executed, shall not
be deemed to be an amendment of this Agreement or require the
consent of any Holder.
13.5. All article and section headings are inserted for convenience
only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
13.6. All notices and other communications required or permitted
hereunder are to be given pursuant to the provisions of the
Merger Agreement.
13.7. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable
law, then such provision shall be excluded from this Agreement
and the remainder of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in
accordance with its terms; provided, however, that in such
event this Agreement shall be interpreted so as to give
effect, to the greatest extent consistent with and permitted
by applicable law, to the meaning and intention of the
excluded provision as determined by such court of competent
jurisdiction.
13.8. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and enforceable
against the parties actually executing such counterpart, and
all of which together shall constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
VIRYANET LTD.
BY:
------------------------
Name:----------------------
Title:---------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
GE CAPITAL EQUITY INVESTMENTS, INC.
By:
--------------------------------
Name:------------------------------
Title:-----------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
ECTMI TRUTTA HOLDINGS LP
By:
-----------------------------
Name:------------------------
Title:------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
AETHER SYSTEMS INC.
By:
------------------------
Name:----------------------
Title:---------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
VALENTIS INVESTORS LLC
By:-----------------------------
Name:--------------------------
Title:------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IMPRIMIS SB, L.P.
By: Imprimis SB G.P. LLC
Its General Partner
By:____________________________
Name:__________________________
Title:_________________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INSIGHT CAPITAL PARTNERS II, L.P.
By: InSight Venture Associates II, L.L.C.
Its General Partner
By:______________________________________
Name:____________________________________
Title: Its Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INSIGHT CAPITAL PARTNERS(CAYMAN) II, L.P.
By: InSight Venture Associates II, LLC
Its General Partner
By:____________________________
Name:__________________________
Title:_____________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
---------------------------
XXXXXX MEDIATE
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
MEDIATE INVESTMENTS, LLLP
By:______________________________
Name:____________________________
Title:___________________________
