Exhibit E
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of May 8, 1997 among MAGNAVISION
CORPORATION, a Delaware corporation (the "Company"), the Investors and the other
parties set forth on Schedule I hereto (the "Stockholders").
SECTION 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Company's Common Stock, $.08 par value per
share, and any successor security to such Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall
be in effect from time to time.
"Investors" means IBJS Capital Corporation, a Delaware corporation, and
KOCO Capital Company, L.P., a Delaware limited partnership, and their respective
successors, assigns and transferees.
"Other Shares" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
"Primary Shares" means at any time the authorized but unissued shares
of Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Shares" means at any time, with respect to any
Stockholder, the shares of Common Stock held by such Stockholder or issuable to
such Stockholder upon the conversion, exercise or exchange of Restricted Shares.
"Registration Date" means the date upon which the registration
statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale to the public shall have been
declared effective.
"Restricted Shares" means at any time, with respect to any Stockholder,
the shares of Common Stock, any other securities which by their terms are
exercisable or exchangeable for or convertible into Common Stock and any
securities received in respect thereof, which are held by such Stockholder and
which have not previously been sold to the public pursuant to a registration
statement under the Securities Act.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Transfer" means any disposition of any Restricted Shares or of any
interest therein which constitutes a sale within the meaning of the Securities
Act, other than any disposition pursuant to an effective registration statement
under the Securities Act and complying with all applicable state securities and
"blue sky" laws.
SECTION 2. Required Registration.
If the Company shall be requested by Investors who or which hold
Restricted Shares (based upon Common Stock equivalents) constituting at least
25% of the then-outstanding Common Stock and Common Stock equivalents held by
all Investors, to effect the registration under the Securities Act of
Registrable Shares in accordance with this Section, then the Company shall
promptly give written notice of such proposed registration to all holders of
Restricted Shares and shall offer to include in such proposed registration any
Registrable Shares requested to be included in such proposed registration by
such holders who respond in writing to the Company's notice within 30 days after
delivery of such notice (which response shall specify the number of Registrable
Shares proposed to be included in such registration). The Company shall promptly
use its best efforts to effect such registration under the Securities Act of the
Registrable Shares which the Company has been so requested to register;
provided, however, that the Company shall not be obligated to effect any
registration under the Securities Act except in accordance with the following
provisions:
(a) The Company shall not be obligated to use its best efforts to
file and cause to become effective (i) more than three registration
statements initiated pursuant to this Section or (ii) any registration
statement during any period in which any other registration statement
(other than on Form S-4 or Form S-8 promulgated under the Securities
Act or any successor forms thereto) pursuant to which Primary Shares
are to be or were sold has been filed and not withdrawn or has been
declared effective within the prior 90 days;
(b) The Company may delay the filing or effectiveness of any
registration statement if at the time of a request for registration
pursuant to this
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Section the Company is registering, or has fixed plans to register
within 60 days of the time of such request, Primary Shares under the
Securities Act, in which event such registration shall not count as a
registration initiated pursuant to this Section and the holders of
Restricted Shares may include Registrable Shares pursuant to and in
accordance with Section 3; and
(c) With respect to any registration pursuant to this Section, the
Company may include in such registration any Primary Shares or Other
Shares; provided, however, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares, Primary Shares
and Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of all such
securities, then the number of Registrable Shares, Primary Shares and
Other Shares proposed to be included in such registration shall be
included in the following order:
(i) first, the Registrable Shares held by the Stockholders,
pro rata based upon the number of Registrable Shares requested to
be included by each Stockholder in such registration;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares.
(d) A requested registration shall not count as a registration
initiated pursuant to this Section for purposes of paragraph (a) above
unless the Investors are able to register and sell at least 80% of the
Registrable Shares requested to be included therein. A requested
registration may be rescinded by written notice to the Company by the
Investors initiating such request; provided, however, that such
rescinded registration shall not count as a registration statement
initiated pursuant to this Section for purposes of paragraph (a) above
if the Investors initiating such request shall have reimbursed the
Company for all out-of-pocket expenses incurred by the Company in
connection with such rescinded registration.
SECTION 3. Piggyback Registration.
If the Company at any time proposes for any reason to register Primary
Shares or Other Shares under the Securities Act (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto), it
shall promptly give written notice to each Stockholder of its intention so to
register the Primary Shares or Other Shares and, upon the written request, given
within 30 days after delivery of any such notice by the Company, of any
Stockholder to include in such registration Registrable Shares (which request
shall specify the number of Registrable Shares proposed to be included in such
registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the
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same terms and conditions as the securities otherwise being sold in such
registration; provided, however, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of the Primary Shares proposed to be registered by the
Company, then the number of Primary Shares, Registrable Shares and Other Shares
proposed to be included in such registration shall be included in the following
order:
(a) first, the Primary Shares;
(b) second, the Registrable Shares held by the Stockholders,
pro rata based upon the number of Registrable Shares requested to be
included by each Stockholder in such registration; and
(c) third, the Other Shares.
SECTION 4. Registrations on Form S-3.
Anything contained in Section 2 to the contrary notwithstanding,
at such time as the Company shall have qualified for the use of Form S-3
promulgated under the Securities Act or any successor form thereto, Investors
who or which hold Restricted Shares (based upon Common Stock equivalents)
constituting at least 20% of the then-outstanding Common Stock and Common Stock
equivalents held by all Investors shall have the right to request in writing an
unlimited number of registrations on Form S-3 or such successor form of
Registrable Shares, which request or requests shall (i) specify the number of
Registrable Shares intended to be sold or disposed of, (ii) state the intended
method of disposition of such Registrable Shares, and (iii) relate to
Registrable Shares having an anticipated aggregate offering price of at least
$500,000; provided, however, that the Company shall have no obligation to
undertake more than one (1) registration on Form S-3 in any six (6) month
period. A requested registration on Form S-3 or any such successor form in
compliance with this Section shall not count as a registration statement
demanded pursuant to Section 2, but shall otherwise be treated as a registration
initiated pursuant to and shall, except as otherwise expressly provided in this
Section, be subject to Section 2.
SECTION 5. Holdback Agreement.
If the Company at any time shall register shares of Common Stock
under the Securities Act (including any registration pursuant to Section 2, 3 or
4) for sale to the public, the Stockholders shall not sell, make any short sale
of, grant any option for the purchase of, or otherwise dispose of any Restricted
Shares (other than those shares of Common Stock included in such registration)
without the prior written consent of the Company for a period designated by the
Company in writing to the Stockholders, which period shall not begin more than
10 days prior to the effectiveness of the registration statement pursuant to
which such public offering shall be made and shall not last more than 90 days
after the effective date of such registration statement.
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SECTION 6. Preparation and Filing.
If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares, the Company shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain
effective for a period of 90 days or until all of such Registrable
Shares have been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements
relating to such a registration statement or prospectus, to one
counsel selected by the holders of a majority of such Registrable
Shares (the "Selling Stockholders' Counsel"), copies of all such
documents proposed to be filed (it being understood that such
five-business-day period need not apply to successive drafts of
the same document proposed to be filed so long as such successive
drafts are supplied to such counsel in advance of the proposed
filing by a period of time that is customary and reasonable under
the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective for at least a period of 90 days
or until all of such Registrable Shares have been disposed of (if
earlier) and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of such Registrable
Shares;
(d) notify in writing the Selling Stockholders' Counsel
promptly (i) of the receipt by the Company of any notification
with respect to any comments by the Commission with respect to
such registration statement or prospectus or any amendment or
supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information
with respect thereto, (ii) of the receipt by the Company of any
notification with respect to the issuance by the Commission of any
stop order suspending the effectiveness of such registration
statement or prospectus or any amendment or supplement thereto or
the initiation or threatening of any proceeding for that purpose
and (iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any seller of
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Registrable Shares reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to
enable such seller of Registrable Shares to consummate the
disposition in such jurisdictions of the Registrable Shares owned
by such seller; provided, however, that the Company will not be
required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required so to do but
for this paragraph (e);
(f) furnish to each seller of such Registrable Shares such
number of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as
such seller of Registrable Shares may reasonably request in order
to facilitate the public sale or other disposition of such
Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Shares;
(h) notify on a timely basis each seller of such Registrable
Shares at any time when a prospectus relating to such Registrable
Shares is required to be delivered under the Securities Act within
the appropriate period mentioned in paragraph (a) of this Section,
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 light of the
circumstances then existing and, at the request of such seller,
prepare and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the offerees of such
shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(i) make available for inspection by any seller of such
Registrable Shares, any underwriter participating in any
disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers,
directors and employees to supply all information (together with
the Records, the "Information") reasonably requested by any such
Inspector in connection with such
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registration statement. Any of the Information which the Company
determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be
disclosed by the Inspectors unless (i) the disclosure of such
Information is necessary to avoid or correct a misstatement or
omission in the registration statement, (ii) the release of such
Information is ordered pursuant to a subpoena or other order from
a court of competent jurisdiction or (iii) such Information has
been made generally available to the public. The seller of
Registrable Shares agrees that it will, upon learning that
disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary
form and at customary times and covering matters of the type
customarily covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an
opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable
Shares;
(m) issue to any underwriter to which any seller of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if
the Common Stock is not listed on a national securities exchange,
use its best efforts to qualify such Registrable Shares for
inclusion on the automated quotation system of the National
Association of Securities Dealers, Inc. (the "NASD") or such
national securities exchange as the Company shall reasonably
determine;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make
available to its securityholders, as soon as reasonably
practicable, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months after
the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated
hereby.
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SECTION 7. Expenses.
All expenses incurred by the Company in complying with Section 6,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses, fees and expenses of the
Company's counsel and accountants and fees and expenses of one Selling
Stockholders' Counsel, shall be paid by the Company; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares shall be borne by the seller or sellers thereof, in proportion to the
number of Registrable Shares sold by such seller or sellers.
SECTION 8. Indemnification.
In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless the seller of such Registrable Shares, each underwriter,
broker or any other person acting on behalf of such seller and each other
person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act against any losses, claims, damages or liabilities, joint or
several, (or actions in respect thereof) to which any of the foregoing persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon the 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, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Company of the Securities Act or state securities or
blue sky laws applicable to the Company and relating to action or inaction
required of the Company in connection with such registration or qualification
under such state securities or blue sky laws; and shall reimburse such seller,
such underwriter, such broker or such other person acting on behalf of such
seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller, its counsel, or such underwriter specifically for use in the preparation
thereof.
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In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the preceding paragraph of this Section) the Company, each director
of the Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of such
seller, each person who controls any of the foregoing persons within the meaning
of the Securities Act and each other seller of Registrable Shares under such
registration statement with respect to any statement or omission from such
registration statement, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company or such
underwriter through an instrument duly executed by such seller, its counsel, or
such underwriter specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; provided, however that the obligation to indemnify will
be individual to each seller and will be limited to the net amount of proceeds
received by such seller from the sale of Registrable Shares pursuant to such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section.
If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such
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indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage or liability as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party 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 indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
SECTION 9. Underwriting Agreement.
Notwithstanding the provisions of Sections 5, 6, 7 and 8, to the
extent that the Company and the Stockholders selling Registrable Shares in a
proposed registration shall enter into an underwriting or similar agreement,
which agreement contains provisions covering one or more issues addressed in
such Sections, the provisions contained in such Sections addressing such issue
or issues shall be superseded with respect to such registration by such other
agreement.
SECTION 10. Information by Holder.
Each holder of Registrable Shares to be included in any
registration shall furnish to the Company such written information regarding
such holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this
Agreement.
SECTION 11. Exchange Act Compliance.
From and after the Registration Date or such earlier date as a
registration statement filed by the Company pursuant to the Exchange Act
relating to any class of the Company's securities shall have become effective,
the Company shall comply with all of the reporting requirements of the Exchange
Act and with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Company shall cooperate with each Stockholder in supplying
such information as may be necessary for such Stockholder to complete and file
any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
SECTION 12. No Conflict of Rights.
The Company represents and warrants to the Stockholders that the
registration rights granted to the Stockholders hereby do not conflict with any
other registration
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rights granted by the Company. The Company shall not, after the date hereof,
grant any registration rights which conflict with or impair the registration
rights granted hereby.
SECTION 13. Restriction on Transfer.
(a) The Restricted Shares shall not be transferable except upon
the conditions specified in this Section, which conditions are intended to
insure compliance with the provisions of the Securities Act.
(b) Each certificate representing Restricted Shares shall (unless
otherwise permitted by the provisions of paragraph (c) and (d) below) be stamped
or otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SUCH ACT. ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS
SUBJECT TO THE CONDITIONS SPECIFIED IN SECTION 13 OF THE
REGISTRATION RIGHTS AGREEMENT DATED MAY 8, 1997 AMONG MAGNAVISION
CORPORATION AND CERTAIN OTHER SIGNATORIES THERETO, AND NO TRANSFER
OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF CERTAIN OF
SUCH CONDITIONS, MAGNAVISION CORPORATION HAS AGREED TO DELIVER TO
THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR
THE SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME OF SUCH
HOLDER. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF MAGNAVISION CORPORATION."
(c) The holder of any Restricted Shares by acceptance thereof
agrees, prior to any Transfer of any Restricted Shares, to give written notice
to the Company of such holder's intention to effect such Transfer and to comply
in all other respects with the provisions of this Section. Each such notice
shall describe the manner and circumstances of the proposed Transfer. Upon
request by the Company, the holder delivering such notice shall deliver a
written opinion, addressed to the Company, of counsel for the holder of
Restricted Shares, stating that in the opinion of such counsel (which opinion
and counsel shall be reasonable satisfactory to the
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Company) such proposed Transfer does not involve a transaction requiring
registration or qualification of such Restricted Shares under the Securities Act
or the securities or "blue sky" laws of any state of the United States. Such
holder of Restricted Shares shall be entitled to Transfer such Restricted Shares
in accordance with the terms of the notice delivered to the Company, if the
Company does not reasonably object to such Transfer and request such opinion
within five business days after delivery of such notice, or, if it requests such
opinion, does not reasonably object to such Transfer within five days after
delivery of such opinion. Each certificate or other instrument evidencing the
securities issued upon the Transfer of any Restricted Shares (and each
certificate or other instrument evidencing any untransferred balance of such
Registered Shares) shall bear the legend set forth in paragraph (b) above unless
(i) in such opinion of counsel registration of any future Transfer is not
required by the applicable provisions of the Securities Act or (ii) the Company
shall have waived the requirement of such legends.
(d) Notwithstanding the foregoing provisions of this Section, the
restrictions imposed by this Section upon the transferability of any Restricted
Shares shall cease and terminate when (i) any such Restricted Shares are sold or
otherwise disposed of (A) pursuant to an effective registration statement under
the Securities Act or (B) in a transaction contemplated by paragraph (c) above
which does not require that the Restricted Shares so transferred bear the legend
set forth in paragraph (b) hereof, or (ii) the holder of such Restricted Shares
has met the requirements for Transfer of such Restricted Shares under Rule
144(k). Whenever the restrictions imposed by this Section shall terminate, the
holder of any Restricted Shares as to which such restrictions have terminated
shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in paragraph (b) above
and not containing any other reference to the restrictions imposed by this
Section.
SECTION 14. Termination.
This Agreement shall terminate and be of no further force or
effect when there shall not be any Restricted Shares.
SECTION 15. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Company
and the Stockholders and, subject to Section 16, their respective successors and
assigns.
SECTION 16. Assignment.
Each Stockholder may assign its rights hereunder to any purchaser
from such Stockholder of Restricted Shares (based upon Common Stock
equivalents); provided, however, that such purchaser shall, as a condition to
the effectiveness of such assignment, be required to execute a counterpart to
this Agreement agreeing to be treated as an Investor, as the case may be,
whereupon such purchaser shall have the benefits of, and shall be subject to the
restrictions contained in, this Agreement.
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SECTION 17. Entire Agreement.
This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings with respect hereto.
SECTION 18. Notices.
All notices, requests, consents and other communications hereunder
to any party shall be deemed to be sufficient if contained in a written
instrument and shall be deemed to have been duly given when delivered in person,
by telecopy, by nationally-recognized overnight courier, or by first class
registered or certified mail, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by the addressee to the addressor:
(i) if to the Company, to:
MagnaVision Corporation
0000 Xxxxxxx 00 Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
Zimet, Haines, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to any Investor Stockholder, to:
IBJS Capital Corporation
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
14
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
KOCO Capital Company, L.P.
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day and (c) in the case of mailing, on
the third business day following such mailing.
SECTION 19. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified or
amended, except pursuant to a writing signed by the Company, the Investors
holding at least 66-2/3% of the Restricted Shares (based upon Common Stock
equivalents) held by all Investors; provided, however, that no modification or
amendment shall discriminate against any Stockholder without the consent of such
Stockholder. This Section may only be amended with the consent of all parties to
this Agreement.
SECTION 20. Counterparts.
This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
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SECTION 21. Headings.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
SECTION 22. Severability.
It is the desire and intent of the parties that the provisions of
this Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 23. Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to principles
governing conflicts of laws.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
MAGNAVISION CORPORATION
By:___________________________
Name:
Title:
STOCKHOLDERS:
IBJS CAPITAL CORPORATION
By:___________________________
Name:
Title:
KOCO CAPITAL COMPANY, L.P.
By: KOCO Capital Partners, L.P.
Its General Partner
By: Kisco Capital Corporation
Its General Partner
By:___________________________
Name:
Title:
CACOMM, INC.
By:___________________________
Name:
Title:
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SCHEDULE I
Investor Number of Common Stock
-------- Equivalents
----------------------
IBJS Capital Corporation 1,096,159
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx Xxxxxxx
KOCO Capital Company, L.P. 730,773
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Cacomm, Inc. 920,889
0000 Xxxxxxx 00 Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Xx.
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