REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of
July 14, 2000, between Thumberland Limited ("Purchaser") and
Cambex Corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery
of this Agreement, pursuant to a Common Stock Purchase Agreement
dated the date hereof (the "Purchase Agreement") the Purchaser has
committed to purchase up to $10,000,000 worth of the Company's
Common Stock (terms not defined herein shall have the meanings
ascribed to them in the Purchase Agreement); and
WHEREAS, the Company desires to grant to the Purchaser
the registration rights set forth herein with respect to the Shares and
the Shares issuable upon exercise of the warrants from time to time
(the "Warrant Shares") (hereinafter referred to collectively as the
"Stock" or "Securities" of the Company).
NOW, THEREFORE, in consideration of the covenants and
mutual promises contained herein and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, the parties
hereby agree as follows:
Section 1. Registrable Securities. As used herein the
term "Registrable Security" means the Securities until (i) all
Securities have been disposed of pursuant to the Registration
Statement, (ii) all Securities have been 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) all Securities have been otherwise transferred
to persons who may trade such Securities without restriction
under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such Securities not
bearing a restrictive legend or (iv) such time as, in the opinion of
counsel to the Company, all Securities 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. The
term "Registrable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registrable
Security." 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 Securities as
provided herein, the Securities are "restricted securities" as
defined in Rule 144 promulgated under the Act. The Purchaser
understands that no disposition or transfer of the Securities 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 under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the
Purchaser to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule
144; and
(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 any 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
Securities.
(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 ▇▇-▇, ▇-▇ 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(c)
hereof), in respect of Purchaser, so as to permit a public offering and
resale of the Securities by Purchaser and other shares of Common
Stock under the Act.
The Company shall use its best efforts to cause the
Registration Statement to become effective within five (5) days of
SEC clearance to request acceleration of effectiveness. If the
Registration Statement is not declared effective by October 31, 2000
this Agreement and the Purchase Agreement shall terminate. The
Company will notify Purchaser of the effectiveness of the
Registration Statement within one Trading Day of such event.
(b) The Company will maintain the Registration Statement
or post-effective amendment filed under this Section 3 hereof
effective under the Securities Act until the earlier of (i) the date that
none of the Securities are or may become issued and outstanding, (ii)
the date that all of the Securities have been sold pursuant to the
Registration Statement, (iii) the date the holders thereof receive an
opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Purchaser, that the Securities may be
sold under the provisions of Rule 144 without limitation as to volume,
(iv) all Securities 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 securities not bearing a restrictive legend, or (v)
all Securities 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 (the "Effectiveness Period").
(c) 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 Securities being registered and the fees and expenses of its
counsel. 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 amendment thereto, prior to filing with
the Commission, and the Company shall provide each Purchaser with
copies of any comment letters received from the Commission with
respect thereto within two (2) Trading Days of receipt thereof. 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 such 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 such Purchaser or any such
underwriter, attorney, accountant or agent in connection with the
Registration Statement, in each case, as is customary for similar due
diligence examinations; provided, however, that 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 such
Purchaser and any such underwriter, attorney, accountant or agent
(pursuant to an appropriate confidentiality agreement in the case of
any such Purchaser or agent), 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; and
provided further that, 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. The Company shall qualify any of the securities for sale in
such states as such 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. The Company at its
expense will supply the Purchaser with copies of the Registration
Statement and the prospectus included therein and other related
documents in such quantities as may be reasonably requested by the
Purchaser.
(d) The Company shall not be required by this Section 3 to
include a Purchaser's Securities 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 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.
(e) 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(f) below), the Purchaser shall not offer or sell
any Securities or engage in any other transaction involving or relating
to Securities, from the time of the giving of notice with respect to a
Potential Material Event until such 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; provided, however, that if the Company so suspends the right
to such holders of Securities for more than twenty (20) days in the
aggregate during any twelve month period, during the periods the
Registration Statement is required to be in effect then the Company
must compensate the Purchaser for any net decline in market value of
the Securities held by Purchaser at the beginning of such suspension
through the end of such suspension. 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) days. The
Company must give Purchaser notice in writing at least two (2)
Trading Days prior to the first day of the blackout period, if lawful to
do so.
(f) "Potential Material Event" means any of the following:
(a) 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 (b) 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. Purchaser will
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 underwritten offering. The Purchaser
hereby does 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 Securities 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 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 used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the
provisions of the 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
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
forming part of the Registration Statement, and any amendment or
supplement thereto, does not at any time during the Registration
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 Purchasers and reflect in
such documents all such comments as the Purchasers (and their
counsel) reasonably may propose and (ii) furnish to each Purchaser
such numbers of copies of a prospectus including a preliminary
prospectus or any amendment or supplement to any prospectus, as
applicable, in conformity with the requirements of the Act, and such
other documents, as such Purchaser may reasonably request in order
to facilitate the public sale or other disposition of the securities owned
by such Purchaser;
(c) register and qualify the Registrable Securities covered
by the Registration Statement under such other securities or blue sky
laws of such jurisdictions as the Purchaser shall reasonably request
(subject to the limitations set forth in Section 3(d) above), and do any
and all other acts and things which may be necessary or advisable to
enable each Purchaser to consummate the public sale or other
disposition in such jurisdiction of the securities owned by such
Purchaser, except that the Company shall not for any such purpose be
required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein any general
consent to service of process;
(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 of such Registrable Securities is
then permitted under the rules of such exchange or the Nasdaq Stock
Market;
(e) notify each Purchaser at any time when a prospectus
relating thereto covered by the Registration Statement is required to
be delivered under the Act, of the happening of any event of which it
has knowledge as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, 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 each Purchaser who holds Registrable Securities
being sold (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, recession or removal of such
stop order or other suspension;
(g) cooperate with the Purchasers 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 Purchasers reasonably may
request and registered in such names as the Purchaser may request;
and, within three (3) Trading Days after a Registration Statement
which includes Registrable Securities is declared effective by the
Commission, deliver and cause legal counsel selected by the
Company to deliver to the transfer agent for the Registrable Securities
(with copies to the Purchasers whose Registrable Securities are
included in such Registration Statement) an appropriate instruction
and, to the extent necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary
to expedite and facilitate the disposition by the Purchasers of their
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
managers 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 and registrar 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 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, final 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, final 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 contained in such
Registration Statement 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.
This indemnity agreement will be in addition to any liability, which
the Company may otherwise have.
(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, final 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, final 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. This indemnity agreement will be in
addition to any liability, which the Distributing Purchaser may
otherwise have. Notwithstanding anything to the contrary herein, the
Distributing Investor shall not be liable under this Section 6(b) for any
amount in excess of the net proceeds to such Distributing Investor as
a result of the sale of Registrable Securities pursuant to the
Registration Statement.
(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). 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 (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder;
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).
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 such Purchaser from the
sale of such 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 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. 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. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
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 holders 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. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York applicable to contracts made in New York by
persons domiciled in New York City and without regard to its
principles of conflicts of laws. Any action may be brought as set
forth in the Purchase Agreement. Any party shall have the right to
seek injunctive relief from any court of competent jurisdiction in
any case where such relief is available. Any dispute under this
Agreement shall be submitted to arbitration under the American
Arbitration Association (the "AAA") in New York City, New York,
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 New York City, New York, 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 New York. 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 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 with 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 reasonable 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
attorney's fees, from the non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on this 14th day
of July, 2000.
CAMBEX CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Its: Chairman, President and
Chief Executive
Officer
Thumberland Limited
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, Authorized
Signatory
