Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of March __, 2007, between
National Patent Development Corporation, a Delaware corporation ("NPDC"), and
Xxxxxx Xxxxxx ( "Xxxxxx").
WHEREAS, pursuant to that certain Agreement, dated as of the date
hereof (the "NPDC Agreement"), between NPDC and Xxxxxx, Xxxxxx is purchasing
200,000 shares (the "NPDC Shares") of NPDC Common Stock; and
WHEREAS, as a condition to entering into the NPDC Agreement, Xxxxxx has
required that NPDC extend to him certain registration rights as provided in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises set forth in this Agreement and in the NPDC Agreement, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. General
1.1 Definitions. As used in this Agreement, in addition to terms defined
elsewhere herein, the following terms shall have the following respective
meanings:
(a) "Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
(b) "Form S-3" means such form under the Securities Act (including Rule 415
thereunder) as in effect on the date hereof or any successor registration form
under the Securities Act subsequently adopted by the SEC which permits inclusion
or incorporation of substantial information by reference to other documents
previously or hereafter filed by NPDC with the SEC.
(c) "Lock-Up Period" has the meaning given to such term in the NPDC Agreement.
(d) "NPDC Common Stock" means NPDC's common stock, par value $.01 per share.
(e) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
(f) "Registrable Securities" means the NPDC Shares owned by Xxxxxx and any
shares of capital stock of NPDC issued in connection with (or issuable upon the
conversion or exercise of any warrant, right, or other security which is issued
as) a dividend, stock split, reclassification, recapitalization or other
distribution with respect to, or in exchange for or in replacement of, the NPDC
Shares; provided, however, that Registrable Securities shall not include any
securities which are eligible for sale under paragraph (k) of Rule 144.
(g) "Registration Expenses" means all expenses incurred by NPDC in complying
with Sections 2.1 and 2.2, hereof, including, without limitation, all
registration and filing fees, printing expenses, escrow fees, listing fees, fees
and disbursements of counsel for NPDC (but excluding any fees and disbursements
of counsel for Xxxxxx), blue sky fees and expenses (including reasonable fees
and disbursements of underwriter's counsel in connection with blue sky
qualifications and filings), and the expense of any special audits and/or
comfort letters incident to or required by any such registration (but excluding
the compensation of regular employees of NPDC).
(h) "Rule 144" means Rule 144 promulgated by the SEC under the Securities Act.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
(k) "Selling Expenses" means all underwriting discounts and selling commissions
applicable to a sale of Registrable Securities.
Section 2. Registration.
2.1 Demand Registration.
(a) Subject to the conditions of this Section 2.1, if NPDC receives a
written request from Xxxxxx that NPDC file a registration statement
under the Securities Act covering the registration of all or a part of
his Registrable Securities, then NPDC shall use its commercially
reasonable efforts to effect, as soon as practicable, the registration
under the Securities Act of all Registrable Securities that he has
requested to be registered (such request to include the number of
Registrable Securities sought to be included and the intended method or
methods of distribution of such Registrable Securities), subject to and
in accordance with the terms, conditions, procedures, and limitations
contained in this Agreement. Xxxxxx may at any time prior to the
effective date of the registration statement relating to a requested
registration under this Section 2.1 revoke his request by providing
written notice to NPDC, in which case the Registration Expenses will be
borne in accordance with Section 2.4.
(b) NPDC shall not be required to effect a registration pursuant to this
Section 2.1:
(i) prior to the expiration of the Lock-Up Period;
(ii) after NPDC has effected one registration pursuant to this Section 2.1,
provided, however, that a registration shall not count as having been
effected unless and until it has become effective, and unless and until
Xxxxxx shall have had the opportunity to register and sell 100% of his
Registrable Securities initially requested to be registered pursuant
thereto, except that a registration the request for which has been
revoked by Xxxxxx shall count as having been effected unless the
revocation is based upon material adverse information concerning the
business or financial condition of NPDC, of which Xxxxxx was not aware
at the time of his request for registration;
(iii) during the period starting with the date of filing of, and ending on
the date 90 days following the effective date of, a registration
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statement pertaining to any underwritten public offering in which
Xxxxxx was given the opportunity to participate pursuant to Section
2.2; provided that NPDC uses commercially reasonable efforts to cause
such registration statement to become effective; or
(iv) during any period when NPDC is not eligible to use Form
S-3 to register the Registrable Securities.
2.2 Piggyback Registrations.
(a) NPDC shall notify Xxxxxx at least 15 days prior to the filing of any
registration statement under the Securities Act for a public offering of
securities of NPDC (including, but not limited to, registration statements
relating to secondary offerings of securities of NPDC, but excluding
registration statements relating to employee benefit plans or corporate
reorganizations or other transactions under Rule 145 of the Securities Act) and
will afford Xxxxxx an opportunity to include in such registration statement all
or part of the Registrable Securities held by Xxxxxx; provided, that (x) no such
notice shall be required, and this Section 2.2 shall not be applicable, at any
time when a registration statement filed under Section 2.1 is effective. Such
notice shall (i) offer Xxxxxx the opportunity to register such number of
Registrable Securities as he may request and (ii) describe such securities and
specify the form and manner and other relevant facts involved in such proposed
registration (including, without limitation, if known, the price at which such
securities are reasonably expected to be sold to the public, whether or not such
registration will be in connection with an underwritten offering and, if so, the
identity of the managing underwriter, whether such underwritten offering will be
pursuant to a "best efforts" or "firm commitment" underwriting, and, if known,
the amount of underwriting discount reasonably expected to be incurred in
connection therewith). If Xxxxxx desires to include in any such registration
statement all or part of the Registrable Securities held by him, he shall,
within 15 days after receipt of the above-described notice from NPDC, so notify
NPDC in writing. Such notice shall state the number of Registrable Securities
which Xxxxxx requests to be included in such registration and his intended
method of disposition of the Registrable Securities. If Xxxxxx decides not to
include all or any part of his Registrable Securities in any registration
statement filed by NPDC, he shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by NPDC, all upon the terms and
conditions set forth herein. In addition, inclusion of any part of the
Registrable Securities in a registration pursuant to this Section 2.2(a) shall
not affect Xxxxxx'x rights under Section 2.1.
(b) Notwithstanding the provisions of Section 2.2(a), NPDC shall not be required
to give Xxxxxx notice of its intent to file any registration statement of the
type described in Section 2.2(a) which is filed prior to the expiration of the
Lock-Up Period (a "Lock-up Period Registration Statement"), and Xxxxxx shall not
have the right to include any of his Registrable Securities in any Lock-Up
Period Registration Statement, provided that if a Lock-Up Period Registration
Statement is not declared effective prior to the expiration of the Lock-Up
Period, NPDC shall give Xxxxxx a reasonable opportunity to include any of his
Registrable Securities in such Lock-Up Period Registration Statement.
(c) If the registration statement under which NPDC gives notice under this
Section 2.2 is for an underwritten offering, Xxxxxx'x right to be included in a
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registration pursuant to this Section 2.2 shall be conditioned upon his
participation in the underwriting to the extent provided herein and his entering
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by NPDC. Notwithstanding any other
provision of this Section 2.2, if the underwriter determines in good faith that
marketing factors require a limitation of the number of securities to be
underwritten (including Registrable Securities), then NPDC shall so advise
Xxxxxx, and the number of securities that may be included in the underwriting
shall be allocated first, to NPDC; and second, to Xxxxxx and to any other
stockholders of NPDC having comparable rights, on a pro rata basis based on the
total number of Registrable Securities requested to be sold by Xxxxxx and such
other stockholders. If Xxxxxx disapproves of the terms of any such underwriting,
he may elect to withdraw therefrom by written notice to NPDC and the
underwriter, delivered at least 10 business days prior to the effective date of
the registration statement, which withdrawal shall not affect Xxxxxx'x rights
under Section 2.1 or 2.2. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration.
(d) NPDC shall have the right to terminate or withdraw any registration
initiated by it under this Section 2.2 prior to the effectiveness of such
registration whether or not Xxxxxx has elected to include securities in such
registration. The Registration Expenses of such withdrawn registration shall be
borne by NPDC in accordance with Section 2.4.
2.3 Suspension of Registration. Under any registration statement filed pursuant
to Section 2 hereof, NPDC may restrict disposition of Registrable Securities and
Xxxxxx will not be able to dispose of such Registrable Securities, if NPDC shall
have delivered a certificate to Xxxxxx signed by an officer of NPDC stating that
in the good faith judgment of the Board of Directors of NPDC a delay in the
disposition of such Registrable Securities is necessary because NPDC has
determined that such sales would require public disclosure by NPDC of material
nonpublic information that is not included in such registration statement. In
the event of the delivery of such certificate to Xxxxxx, NPDC shall use its
commercially reasonable efforts to amend such registration statement or amend or
supplement the related prospectus as necessary, and take all other actions
necessary, to allow the proposed sale to take place as promptly as possible (or,
if in the reasonable judgment of the Board of Directors of NPDC disclosure of
such event would be detrimental to NPDC, promptly after the earlier of (a) the
date that disclosure of such event would not be detrimental to NPDC and (b) 120
days after the date of such certificate, provided, however, that such right to
delay the sales of Registrable Securities may be exercised by NPDC not more than
twice in any 12-month period and that the aggregate delay in the sale of the
Registrable Securities included in the registration statement shall not exceed
180 days from the date of the respective certificates.
2.4 Expenses of Registration. Except as specifically provided herein, all
Registration Expenses incurred in connection with any registration pursuant to
Section 2.1 or 2.2 shall be borne by NPDC. All Selling Expenses incurred in
connection with any registrations hereunder shall be borne by the holders of the
securities so registered pro rata on the basis of the number of shares so
registered. NPDC shall not, however, be required to pay for expenses of (a) any
registration begun pursuant to Section 2.1, the request for which has been
subsequently withdrawn by Xxxxxx, unless (i) the withdrawal is based upon
material adverse information concerning the business or financial condition of
NPDC, of which Xxxxxx was not aware at the time of such request; or (ii) Xxxxxx
agrees to forfeit his requested registration under Section 2.1. If NPDC is not
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required to pay the Registration Expenses, such expenses shall be borne by
Xxxxxx; and, if NPDC has previously paid any such expenses, Xxxxxx shall
promptly reimburse NPDC therefore.
2.5 Obligations of NPDC. Whenever required to register any Registrable
Securities, NPDC shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use its commercially reasonable efforts to cause such
registration statement to become effective.
(b) Use its commercially reasonable efforts to keep such registration statement
effective in the case of a registration statement under Section 2.1, for up to
90 days, or, if earlier, until Xxxxxx has completed the distribution related
thereto.
(c) Prepare and file with the SEC such amendments (including post effective
amendments and supplemental opinions of counsel, if required) 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 for the period set forth in Section 2.5(b).
(d) Furnish to Xxxxxx such number 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 to facilitate the
disposition of Registrable Securities owned by him.
(e) Use its commercially reasonable efforts to register and qualify the
Registrable Securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as Xxxxxx shall be reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable Xxxxxx to consummate the disposition of the
Registrable Securities owned by him in such jurisdictions; provided that NPDC
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(f) Use its commercially reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered or qualified with or
approved by such other governmental agencies or authorities (including, without
limitation, state securities commissions) as may be necessary to enable Xxxxxx
to consummate the disposition of such Registrable Securities.
(g) Notify Xxxxxx, promptly after NPDC shall receive notice thereof, of the date
and time the registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed.
(h) Notify Xxxxxx, 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
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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, and, at
Xxxxxx'x request, subject to Section 2.3, deliver a reasonable number of copies
of an amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, 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 the light of the circumstances then
existing.
(i) Within a reasonable time before each filing of the registration statement or
any amendment or supplement thereto with the SEC, furnish to one counsel,
selected by Xxxxxx, copies of such documents proposed to be filed, which
documents shall be subject to the reasonable approval of such counsel.
(j) Use its commercially reasonable efforts to prevent the issuance of any order
suspending the effectiveness of a registration statement and, if one is issued,
immediately notify Xxxxxx of the receipt of such notice and use its commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement at the earliest possible moment.
(k) Make available to Xxxxxx and any attorney, accountant, or other agent or
representative retained by him (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents, and properties of NPDC, as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause NPDC's officers, directors, and employees to supply
all information requested by any such Inspector in connection with such
registration statement, subject, in each case, to such confidentiality
agreements as NPDC shall reasonably request.
(l) Use its commercially reasonable efforts to cause the securities covered by
such registration statement to be listed on any securities exchange or quoted on
any quotation system on which similar securities issued by NPDC are then listed
or quoted.
(m) Otherwise use its commercially reasonable efforts to cooperate with the SEC
and other regulatory agencies and take all reasonable actions and execute and
deliver or cause to be executed and delivered all documents reasonably necessary
to effect the registration of any securities under this Agreement.
(n) Provide a transfer agent and registrar for all such Registrable Securities
not later than the effective date of such registration statement.
(o) If such registration involves an underwritten offering, obtain and furnish a
comfort letter, dated the effective date of such registration statement, and the
date of the closing under the underwriting agreement, signed by NPDC's
independent public accountants and addressed to Xxxxxx, in customary form and
covering such matters as are customarily covered by comfort letters by
independent public accountants in such public offerings and such other financial
matters as Xxxxxx may reasonably request.
(p) If such registration involves an underwritten offering, furnish a legal
opinion of NPDC's counsel, dated the date of the closing under the underwriting
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agreement and addressed to Xxxxxx, with respect to the registration statement,
each amendment and supplement thereto, the prospectus included therein
(including the preliminary prospectus) and other documents relating thereto, in
customary form and covering such matters as are customarily covered by legal
opinions of issuers' counsel in such public offerings.
(q) During the period when a prospectus is required to be delivered under the
Securities Act, promptly file all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act.
2.6 Termination of Registration Rights. Xxxxxx'x registration rights shall
expire if all Registrable Securities held by and issuable to him may be sold
under SEC Rule 144 during any 90 day period.
2.7 Furnishing Information. It shall be a condition precedent to the obligations
of NPDC to take any action pursuant to Section 2.1, or 2.2 that Xxxxxx shall
furnish to NPDC such information regarding himself, the Registrable Securities
held by him, and the intended method of disposition of such securities as shall
be required to effect the registration of his Registrable Securities.
2.8 Indemnification. If any Registrable Securities are included in a
registration statement under Section 2.1 or 2.2:
(a) To the extent permitted by law, NPDC will indemnify and hold harmless Xxxxxx
and his heirs, executors, personal representatives and agents, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act, or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions, or violations (collectively a "Violation") by NPDC: (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by NPDC of the Securities Act, the
Exchange Act, or any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act, or any state securities law in
connection with the offering covered by such registration statement; and,
subject to Section 2.8(c), NPDC will pay as incurred to Xxxxxx and his heirs,
executors, personal representatives and agents any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 2.8(a) shall not apply to amounts
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paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of NPDC, which consent shall not be
unreasonably withheld, nor shall NPDC be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such person. With respect to any untrue statement or alleged
untrue statement made in, or omission or alleged omission from, any preliminary
prospectus, any Rule 430A prospectus, or any prospectus, the indemnity agreement
contained in this Section 2.8(a) with respect to such preliminary prospectus,
Rule 430A prospectus, or prospectus, to the extent it is based on the claim of a
person who purchased securities directly from a person, shall not inure to the
benefit of such person (or to the benefit of any of its partners, members,
officers, directors, trustees, stockholders, employees, agents, or counsel, or
any person controlling such person ) if the prospectus (or the prospectus as
amended or supplemented if NPDC shall have filed with the SEC any amendment or
supplement thereto) which shall have been furnished to such person prior to the
time it sent written confirmation of or otherwise confirmed such sale to such
purchaser does not contain such statement, alleged statement, omission, or
alleged omission and a copy of the prospectus (or the prospectus as amended or
supplemented if NPDC shall have filed with the SEC any amendment or supplement
thereto) shall not have been sent or given to such purchaser and such purchaser
shall not otherwise have received a copy thereof at or prior to the written
confirmation of such sale.
(b) To the extent permitted by law, Xxxxxx will, if Registrable Securities held
by Xxxxxx are included in the securities as to which such registration is being
effected, indemnify and hold harmless NPDC, each of its directors, its officers,
and each person, if any, who controls NPDC within the meaning of the Securities
Act, against any losses, claims, damages, or liabilities (joint or several) to
which NPDC or any such person may become subject under the Securities Act, the
Exchange Act, or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by Xxxxxx specifically for use in connection with such
registration; and, subject to Section 2.8(c), Xxxxxx will pay as incurred any
legal or other expenses reasonably incurred by NPDC or any such person in
connection with investigating or defending any such loss, claim, damage,
liability, or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.8(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of Xxxxxx, which consent shall not be unreasonably withheld; provided
further, that in no event shall any indemnity obligation of Xxxxxx; under this
Section 2.8 exceed the net proceeds received by Xxxxxx from the sale of
Registrable Securities pursuant to such registration statement.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 2.8, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 2.8, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.8.
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(d) If the indemnification provided for in this Section 2.8 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any losses, claims, damages, or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage, or
liability 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 Violation(s) that 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 a court of law by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the 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;
provided, that in no event shall any contribution by Xxxxxx hereunder exceed the
net proceeds from the offering received by him. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 2.8
were determined by pro rata allocation or any other method of allocation which
does not take into account the equitable consideration referred to in this
Section 2.8(d).
(e) The obligations of NPDC and Xxxxxx under this Section 2.8 shall survive
completion of any offering of Registrable Securities in a registration statement
and the termination of this Agreement. No indemnifying party, in the defense of
any such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
2.9 Rule 144. With a view to making available to Xxxxxx the benefits of certain
rules and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, NPDC agrees to use its
commercially reasonable efforts to, at all times at which any Registrable
Securities are eligible for sale under Rule 144 (other than paragraph (k)
thereof):
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) file with the SEC, in a timely manner, all reports and other documents
required of NPDC under the Exchange Act;
(c) furnish to Xxxxxx, forthwith upon request, a written statement by NPDC
as to its compliance with the reporting requirements of Rule 144 and of
the Exchange Act, a copy of the most recent annual or quarterly report
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of NPDC, and such other reports and documents as Xxxxxx may reasonably
request to sell Registrable Securities under Rule 144; and
(d) cooperate with Xxxxxx in good faith to enable Xxxxxx to deliver,
promptly upon any sale of Registrable Securities (or securities which,
in the absence of eligibility for sale under Rule 144, would be
Registrable Securities) by him under Rule 144 under the Securities Act,
certificates representing such securities which shall not contain any
restrictive legend.
Section 3. Miscellaneous.
3.1 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to conflict of laws.
3.2 No Assignment. Neither this Agreement or any rights hereunder may be
assigned by either party.
3.3 Entire Agreement. This Agreement, the NPDC Agreement and the other documents
delivered pursuant thereto set forth the entire understanding of the parties
with respect to the subject matter hereof and supersede all existing agreements
among them concerning such subject matter.
3.4 Severability. If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
3.5 Amendment and Waiver.
(a) Any provision of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), by written instrument executed by NPDC and
Xxxxxx.
(b) Any waiver of a breach of any provision of this Agreement shall not operate
as or be construed to be a waiver of any other breach of such provision or of
any breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more
occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
3.6 Notices and Consents. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be given by
Federal Express, Express Mail, or similar overnight delivery or courier service
or delivered (in person or by telecopy, telex, or similar telecommunications
equipment) against receipt to the party to whom it is to be given (a) in the
case of NPDC, to its address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000, or (b) in the case of Xxxxxx, to his address at 0000
Xxxx Xxxxx Xxxxxxxxx, XX 000, Xxxxxx XX 00000 (or, in either case, to such other
address as the party shall have furnished in writing in accordance with the
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provisions of this Section 3.6). Any notice shall be deemed given at the time of
receipt thereof.
3.7 Specific Performance. In addition to any other remedy provided at law or
equity, the parties hereto shall be entitled to specific performance of this
Agreement.
3.8 Headings. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
3.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument. The transmission by facsimile by each party of a signed
counterpart copy of this Agreement to the other party shall be deemed proof of
signature of the original and the signed facsimile so transmitted shall be
deemed an original for the purposes of this Agreement.
3.10 Pronouns. All pronouns contained herein, and any variations thereof, shall
be deemed to refer to the masculine, feminine or neutral, singular or plural, as
to the identity of the parties hereto may require.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
NATIONAL PATENT DEVELOPMENT CORPORATION
By:_________________________
Name:
Title:
-------------------------
Xxxxxx Xxxxxx
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