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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
February 20, 2001 between Xxxxxx International Limited ("Purchaser") and
x-Xxxxxxx.xxx (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the parties are entering into a Common Stock Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), by and between the
Purchaser and the Company, the Purchaser has committed to purchase up to
$25,000,000 of the Company's Common Stock (terms not defined herein shall have
the meanings ascribed to them in the Purchase Agreement) and the Warrant; and
WHEREAS, the execution and delivery of this Agreement granting to
the Purchaser the registration rights set forth herein with respect to the
Shares is a component part of the transaction contemplated under the Purchase
Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" means all Shares that have not been (i) sold under the
Registration Statement, (ii) sold under circumstances under which all of the
applicable conditions of Rule 144 (or any similar provision then in force) under
the Securities Act ("Rule 144") are met, (iii) otherwise transferred to persons
who may trade such Shares without restriction under the Securities Act, and the
Company has delivered a new certificate or other evidence of ownership for such
Shares not bearing a restrictive legend or (iv) sold without any time, volume or
manner limitations pursuant to Rule 144(k) (or any similar provision then in
effect) under the Securities Act. In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure affecting
the Common Stock, such adjustment shall be deemed to be made in the definition
of "Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. The Purchaser acknowledges and
understands that in the absence of an effective Registration Statement
authorizing the resale of the Shares as provided herein, the Shares are
"restricted securities" as defined in Rule 144. The Purchaser understands that
no disposition or transfer of the Shares may be made by Purchaser in the absence
of (i) an opinion of counsel to the Purchaser, in form and substance reasonably
satisfactory to the Company, that such transfer may be made without registration
under the Securities Act, or (ii) such registration.
With a view to making available to the Purchaser the benefits of
Rule 144, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144;
and
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(b) file with the Commission in a timely manner all reports and
other documents required to be filed by the Company pursuant to Section
13 or 15(d) under the Exchange Act; and, if at any time it is not
required to file such reports but in the past had been required to or
did file such reports, it will, upon the request of the Purchaser, make
available other information as required by, and so long as necessary to
permit sales of, its Registrable Securities pursuant to Rule 144.
Section 3. Registration Rights With Respect to the Shares.
(a) The Company agrees that it will prepare and file with the
Securities and Exchange Commission ("Commission"), within forty-five
(45) days after the date hereof, a registration statement (on Form S-3
and/or S-1, or other appropriate form of registration statement) under
the Securities Act (the "Registration Statement"), at the sole expense
of the Company (except as provided in Section 3(d) hereof, so as to
permit a public offering and resale of the Shares under the Securities
Act by Purchaser.
(b) The Company shall use its best efforts to cause the
Registration Statement to become effective within the earlier of (i)
ninety (90) days of the date hereof, or (ii) five (5) days after
receiving written notice of SEC clearance and will within said five (5)
days request acceleration of effectiveness. The Company will notify
Purchaser of the effectiveness of the Registration Statement within one
Trading Day of such event.
(c) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 hereof effective
under the Securities Act until the earliest of (i) the date that all the
Shares have been disposed of pursuant to the Registration Statement,
(ii) the date that all of the Shares have been sold pursuant to the
Registration Statement, (iii) all Shares have been otherwise transferred
to persons who may trade such shares without restriction under the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such Shares not bearing a restrictive legend,
(iv) all Shares may be sold without any time, volume or manner
limitations pursuant to Rule 144(k) or any similar provision then in
effect under the Securities Act in the opinion of counsel to the
Company, which counsel shall be reasonably acceptable to the Purchaser,
or (v) 20 months after the Effective Date, provided that the Company
gives the investor 10 Trading Days' notice that the Registration
Statement shall no longer be effective (the "Effectiveness Period").
(d) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of
the Registration Statement under subparagraph 3(a) and in complying with
applicable securities and Blue Sky laws (including, without limitation,
all attorneys' fees of the Company) shall be borne by the Company. The
Purchaser shall bear the cost of underwriting and/or brokerage
discounts, fees and commissions, if any, applicable to the Shares being
registered and the fees and expenses of its counsel.
(e) The Purchaser and its counsel shall have a reasonable period,
not to exceed five (5) Trading Days, to review the proposed Registration
Statement or any
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amendment thereto, prior to filing with the Commission, and the Company
shall provide the Purchaser with copies of any comment letters received
from the Commission with respect thereto within two (2) Trading Days of
receipt thereof.
(f) The Company shall make reasonably available for inspection by
Purchaser, any underwriter participating in any disposition pursuant to
the Registration Statement, and any attorney, accountant or other agent
retained by the Purchaser or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the Company's officers,
directors and employees to supply all information reasonably requested
by the Purchaser or any such underwriter, attorney, accountant or agent
in connection with the Registration Statement, in each case, as is
customary for due diligence examinations; provided, however, all
records, information and documents that are designated in writing by the
Company, in good faith, as confidential, proprietary or containing any
material non-public information shall be kept confidential by the
Purchaser and any such underwriter, attorney, accountant or agent (and,
upon the reasonable request of the Company, as a condition to the
Purchaser's right to receive such information hereunder, such
underwriters, attorneys, accountants and agents, as may be applicable,
shall enter into confidentiality agreements in a form reasonably
acceptable to the Company), unless such disclosure is made pursuant to
judicial process in a court proceeding (after first giving the Company
an opportunity promptly to seek a protective order or otherwise limit
the scope of the information sought to be disclosed) or is required by
law, or such records, information or documents become available to the
public generally or through a third party not in violation of an
accompanying obligation of confidentiality. If the foregoing inspection
and information gathering would otherwise disrupt the Company's conduct
of its business, such inspection and information gathering shall, to the
maximum extent possible, be coordinated on behalf of the Purchaser and
the other parties entitled thereto by one firm of counsel designed by
and on behalf of the majority in interest of Purchaser and other
parties.
(g) The Company shall qualify any of the Shares for sale in such
states as the Purchaser reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the
Company shall not be required to qualify in any state which will require
an escrow or other restriction relating to the Company and/or the
sellers, or which will require the Company to qualify to do business in
such state or require the Company to file therein any general consent to
service of process.
(h) The Company at its expense will supply the Purchaser with
copies of the Registration Statement and the included therein (the
"Prospectus") and other related documents in such quantities as may be
reasonably requested by the Purchaser.
(i) The Company shall not be required by this Section 3 to
include a Purchaser's Shares in any Registration Statement which is to
be filed if, in the opinion of counsel for both the Purchaser and the
Company (or, should they not agree, in the opinion of another counsel
experienced in securities law matters acceptable to counsel for the
Purchaser and the Company) the proposed offering or other transfer as to
which such
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registration is requested is exempt from applicable federal and state
securities laws and would result in all purchasers or transferees
obtaining securities which are not "restricted securities", as defined
in Rule 144 under the Securities Act.
(j) If at any time or from time to time after the effective date
of the Registration Statement, the Company notifies the Purchaser in
writing of the existence of a Potential Material Event (as defined in
Section 3(k) below), the Purchaser shall not offer or sell any Shares or
engage in any other transaction involving or relating to Shares, from
the time of the giving of notice with respect to a Potential Material
Event until the Purchaser receives written notice from the Company that
such Potential Material Event either has been disclosed to the public or
no longer constitutes a Potential Material Event (the "Suspension
Period"). Notwithstanding anything herein to the contrary, if a
Suspension Period occurs during any Draw Down Pricing Period or during
the ten (10) Trading Days immediately following the end of any Draw Down
Pricing Period, the Company must compensate the Purchaser for any net
decline in the market value of any Shares (i) purchased by the Purchaser
pursuant to the most recently completed Draw Down Pricing Period, and
(ii) sold by the Purchaser during the ten (10) Trading Days immediately
following the end of such Suspension period. Net decline shall be
calculated as the difference between the highest VWAP during the
Suspension Period and the average price at which the Purchaser sold the
Shares in accordance with (ii) above. If a Potential Material Event
shall occur prior to the date the Registration Statement is filed, then
the Company's obligation to file the Registration Statement shall be
delayed without penalty for not more than thirty (30) calendar days. THE
COMPANY MUST GIVE PURCHASER NOTICE OF THE EXISTENCE OF A POTENTIAL
MATERIAL EVENT IN WRITING AT LEAST TWO (2) TRADING DAYS PRIOR TO THE
FIRST DAY OF ANY SUSPENSION PERIOD, IF LAWFUL TO DO SO.
(k) "Potential Material Event" means any of the following: (i)
the possession by the Company of material information that is not ripe
for disclosure in a registration statement, as determined in good faith
by the Chief Executive Officer or the Board of Directors of the Company
or that disclosure of such information in the Registration Statement
would be detrimental to the business and affairs of the Company; or (ii)
any material engagement or activity by the Company which would, in the
good faith determination of the Chief Executive Officer or the Board of
Directors of the Company, be adversely affected by disclosure in a
registration statement at such time, which determination shall be
accompanied by a good faith determination by the Chief Executive Officer
or the Board of Directors of the Company that the Registration Statement
would be materially misleading absent the inclusion of such information.
Section 4. Cooperation with Company. The Purchaser shall cooperate
with the Company in all respects in connection with this Agreement, including
timely supplying all information reasonably requested by the Company (which
shall include all information regarding the Purchaser and proposed manner of
sale of the Registrable Securities required to be disclosed in the Registration
Statement) and executing and returning all documents reasonably requested in
connection with the registration and sale of the Registrable Securities and
entering into and performing its obligations under any underwriting agreement,
if the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such
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underwritten offering. The Purchaser shall consent to be named as an underwriter
in the Registration Statement. Purchaser acknowledges that in accordance with
current Commission policy, the Purchaser will be named as the underwriter of the
Shares in the Registration Statement.
Section 5. Registration Procedures. If and whenever the Company is
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Securities Act, the Company shall
(except as otherwise provided in this Agreement), as expeditiously as possible,
subject to the Purchaser's assistance and cooperation as reasonably required:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration
statement whenever the Purchaser of such Registrable Securities shall
desire to sell or otherwise dispose of the same (including prospectus
supplements with respect to the sales of securities from time to time in
connection with a registration statement pursuant to Rule 415
promulgated under the Securities Act) and (ii) take all lawful action
such that each of (A) the Registration Statement and any amendment
thereto does not, when it becomes effective, contain 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 and (B) the Prospectus, and any amendment or supplement
thereto, does not at any time during the Effectiveness Period 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, in light of the circumstances under which they were made, not
misleading;
(b) prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or
delivery of any Prospectus (including any supplements thereto), provide
draft copies thereof to the Purchaser and reflect in such documents all
such comments as the Purchaser (and its counsel) reasonably may propose
and (ii) furnish to the Purchaser such numbers of copies of the
Prospectus including a preliminary prospectus or any amendment or
supplement to any Prospectus, as applicable, in conformity with the
requirements of the Securities Act, and such other documents, as the
Purchaser may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Securities;
(c) comply with New York blue sky laws with respect to the
Registrable Securities (subject to the limitations set forth in Section
3(g) above), and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Purchaser to consummate
the public sale or other disposition in such jurisdiction of the
Registrable Securities;
(d) list such Registrable Securities on the Principal Market, and
any other exchange on which the Common Stock of the Company is then
listed, if the listing
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of such Registrable Securities is then permitted under the rules of such
exchange or the Nasdaq Stock Market;
(e) notify the Purchaser at any time when the Prospectus relating
thereto covered by the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event of
which it has knowledge as a result of which the Prospectus, 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, and the Company shall prepare and file a curative
amendment under Section 5(a) as quickly as commercially possible;
(f) as promptly as practicable after becoming aware of such
event, notify the Purchaser (or, in the event of an underwritten
offering, the managing underwriters) of the issuance by the Commission
or any state authority of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible
time and take all lawful action to effect the withdrawal, rescission or
removal of such stop order or other suspension;
(g) cooperate with the Purchaser to facilitate the timely
preparation and delivery of certificates for the Registrable Securities
to be offered pursuant to the Registration Statement and enable such
certificates for the Registrable Securities to be in such denominations
or amounts, as the case may be, as the Purchaser reasonably may request
and registered in such names as the Purchaser may request, pursuant to
the Purchase Agreement.
(h) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Purchaser of its
Registrable Securities in accordance with the intended methods therefor
provided in the Prospectus which are customary for issuers to perform
under the circumstances;
(i) in the event of an underwritten offering, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to
the Registration Statement such information as the managing underwriters
reasonably agree should be included therein and to which the Company
does not reasonably object and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable
after it is notified of the matters to be included or incorporated in
such prospectus supplement or post-effective amendment; and
(j) maintain a transfer agent for its Common Stock.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Purchaser and each person, if any, who controls the Purchaser within the
meaning of the Securities Act ("Distributing Purchaser") against any
losses, claims, damages or liabilities, joint or
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several (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and
all reasonable attorneys' fees), to which the Distributing Purchaser 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 any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
or any related preliminary prospectus, the Prospectus or amendment or
supplement thereto, 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;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement,
preliminary prospectus, the Prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information
furnished to the Company by the Distributing Purchaser specifically for
use in the preparation thereof. This Section 6(a) shall not inure to the
benefit of any Distributing Purchaser with respect to any person
asserting such loss, claim, damage or liability who purchased the
Registrable Securities which are the subject thereof if the Distributing
Purchaser failed to send or give (in violation of the Securities Act or
the rules and regulations promulgated thereunder) a copy of the
Prospectus to such person at or prior to the written confirmation to
such person of the sale of such Registrable Securities, where the
Distributing Purchaser was obligated to do so under the Securities Act
or the rules and regulations promulgated thereunder.
(b) Each Distributing Purchaser agrees that it will indemnify and
hold harmless the Company, and each officer, director of the Company or
person, if any, who controls the Company within the meaning of the
Securities Act, against any losses, claims, damages or liabilities
(which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees) to which the Company or any such officer,
director or controlling person 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 any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, or any related preliminary
prospectus, the Prospectus or amendment or supplement thereto, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement,
preliminary prospectus, the Prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information
furnished to the Company by such Distributing Purchaser specifically for
use in the preparation thereof. Notwithstanding anything to the contrary
herein, the Distributing Purchaser shall not be liable under this
Section 6(b) for any amount in excess of the net proceeds to such
Distributing Purchaser as a result of the sale of Registrable Securities
pursuant to the Registration Statement.
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(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party except to the
extent of actual prejudice demonstrated by the indemnifying party. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, assume the defense thereof, subject to the
provisions herein stated and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless the
indemnifying party shall not pursue the action to its final conclusion.
The indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is the Distributing
Purchaser, the fees and expenses of such counsel shall be at the expense
of the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii)
the named parties to any such action (including any impleaded parties)
include both the Distributing Purchaser and the indemnifying party and
the Distributing Purchaser shall have been advised by such counsel that
there may be one or more legal defenses available to the indemnifying
party different from or in conflict with any legal defenses which may be
available to the Distributing Purchaser (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of the Distributing Purchaser, it being understood, however, that
the indemnifying party shall, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of
one separate firm of attorneys for the Distributing Purchaser, which
firm shall be designated in writing by the Distributing Purchaser and be
approved by the indemnifying party). No settlement of any action against
an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld.
All fees and expenses of the indemnified party (including
reasonable costs of defense and investigation in a manner not
inconsistent with this Section and all reasonable attorneys' fees and
expenses) shall be paid to the indemnified party, as incurred, within
ten (10) Trading Days of written notice thereof to the indemnifying
party; provided, that the indemnifying party may require such
indemnified party to undertake to reimburse all such fees and expenses
to the extent it is finally judicially determined that such indemnified
party is not entitled to indemnification hereunder.
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Section 7. Contribution. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Purchaser shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees), in
either such case (after contribution from others) on the basis of relative fault
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the applicable Distributing Purchaser on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Distributing Purchaser
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 7. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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.
Notwithstanding any other provision of this Section 7, in no event
shall any (i) Purchaser be required to undertake liability to any person under
this Section 7 for any amounts in excess of the dollar amount of the net
proceeds to be received by the Purchaser from the sale of the Purchaser's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Registration Statement under which such
Registrable Securities are to be registered under the Securities Act and (ii)
underwriter be required to undertake liability to any person hereunder for any
amounts in excess of the aggregate discount, commission or other compensation
payable to such underwriter with respect to the Registrable Securities
underwritten by it and distributed pursuant to the Registration Statement.
Section 8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be delivered as set forth
in the Purchase Agreement.
Section 9. Assignment. Neither this Agreement nor any rights of the
Purchaser or the Company hereunder may be assigned by either party to any other
person. Notwithstanding the foregoing, (a) the provisions of this Agreement
shall inure to the benefit of, and be enforceable by, any transferee of any of
the Common Stock purchased by the Purchaser
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pursuant to the Purchase Agreement other than through open-market sales, and (b)
upon the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed in the case of an assignment to an affiliate of
the Purchaser, the Purchaser's interest in this Agreement may be assigned at any
time, in whole or in part, to any other person or entity (including any
affiliate of the Purchaser) who agrees to be bound hereby.
Section 10. Counterparts/Facsimile. This Agreement may be executed
in two or more counterparts, each of which shall constitute an original, but all
of which, when together shall constitute but one and the same instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective and
enforceable as the original.
Section 11. Remedies and Severability. The remedies provided in this
Agreement are cumulative and not exclusive of any remedies provided by law. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction.
Section 12. Conflicting Agreements. The Company shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the purchasers of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 13. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 14. Governing Law. Governing Law/Arbitration. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of California, without giving effect to the choice of law provisions. The
Company and the Purchaser agree to submit themselves to the in personam
jurisdiction of the state and federal courts situated within the the State of
California with regard to any controversy arising out of or relating to this
Agreement. Any dispute under this Agreement shall be submitted to arbitration
under the commercial rules of the American Arbitration Association (the "AAA")
in San Francisco, California, and shall be finally and conclusively determined
by the decision of a board of arbitration consisting of three (3) members
(hereinafter referred to as the "Board of Arbitration") selected as according to
the rules governing the AAA. The Board of Arbitration shall meet on consecutive
business days in San Francisco, California, and shall reach and render a
decision in writing (concurred in by a majority of the members of the Board of
Arbitration) with respect to the amount, if any, which the losing party is
required to pay to the other party in respect of a claim filed. In connection
with rendering its decisions, the Board of Arbitration shall adopt and follow
the laws of the State of California. To the extent practical, decisions of the
Board of Arbitration shall be rendered no more than thirty (30) calendar days
following commencement of proceedings with
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respect thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. The Board of Arbitration shall
be authorized and is directed to enter a default judgment against any party
refusing to participate in the arbitration proceeding within thirty days of any
deadline for such participation. Any decision made by the Board of Arbitration
(either prior to or after the expiration of such thirty (30) calendar day
period) shall be final, binding and conclusive on the parties to the dispute,
and entitled to be enforced to the fullest extent permitted by law and entered
in any court of competent jurisdiction. The prevailing party shall be awarded
its costs, including attorneys' fees, from the non-prevailing party as part of
the arbitration award. Any party shall have the right to seek injunctive relief
from any court of competent jurisdiction in any case where such relief is
available. The prevailing party in such injunctive action shall be awarded its
costs, including reasonable attorneys' fees, from the non-prevailing party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on this 20th day of February, 2001
X-XXXXXXX.XXX
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President & CEO
XXXXXX INTERNATIONAL LIMITED
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Authorized Signatory
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