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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of March 31, 1997 by Nematron Corporation, a Michigan corporation (the
"Company"), and certain other persons who are signatories hereto (collectively,
the "Holders" and each a "Holder").
WHEREAS, the Company is a party to a certain Agreement and Plan of Merger
(the "Merger Agreement"), of even date herewith, with Intec Controls Corp., a
Massachusetts corporation ("Intec"), NemaSoft, Inc., a Michigan corporation
("NemaSoft"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ pursuant to which Intec is
being merged with and into NemaSoft and the shareholders of Intec, including the
Holders, will receive shares of the Company's common stock (the "Common Stock");
WHEREAS, in order to induce Intec to enter into the Merger Agreement, the
Company has agreed to provide certain registration rights to the Holders with
respect to the shares of Common Stock acquired by them pursuant to the Merger
Agreement;
NOW, THEREFORE, the Company for the benefit of the Holders agrees as
follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
ADVICE: As set forth in Section 4(d).
COMMON STOCK: As set forth in the recitals.
COMPANY: As set forth in the preamble.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended from time
to time.
HOLDER: As set forth in the preamble.
HOLDER'S QUESTIONNAIRE: A questionnaire in the form attached hereto as
Exhibit A.
INTEC: As set forth in the recitals.
MAJORITY HOLDERS: At any time, Holders of Registrable Securities who would
then hold a majority of the Registrable Securities.
MERGER: The merger of Intec with and into NemaSoft as contemplated in the
Merger Agreement.
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MERGER AGREEMENT: As set forth in the recitals.
NASD: The National Association of Securities Dealers, Inc.
NEMASOFT: As set forth in the recitals.
PERSON: Any individual, partnership, corporation, trust or other entity.
PROSPECTUS: A prospectus included in the Shelf Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by the Shelf
Registration Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
REGISTRABLE SECURITIES: The shares of Common Stock acquired by the Holders
pursuant to the Merger and shares of Common Stock acquired upon exercise of
Nematron Warrants (as defined in the Merger Agreement) prior to the filing of
the Shelf Registration Statement, excluding shares which have been sold or
otherwise disposed of under the Shelf Registration Statement.
REGISTRATION EXPENSES: Any and all expenses incident to performance of or
compliance with this Agreement, including, without limitation: (i) all SEC,
stock exchange or NASD registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualification of any of the Registrable Securities and the preparation of a
Blue Sky Memorandum) and compliance with the rules of the NASD, (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing the Shelf Registration Statement, Prospectus,
certificates and other documents relating to the performance of and compliance
with the Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities exchange
or the Nasdaq Stock Market, and (v) the fees and disbursements of counsel for
the Company and of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters, if any, required
by or incident to such performance and compliance. Registration Expenses shall
specifically exclude underwriting discounts and commissions, brokerage or dealer
fees, the fees and disbursements of counsel, accountants or other
representatives of a selling Holder, and transfer taxes, if any relating to the
sale or disposition of Registrable Securities by such Holder, all of which shall
be borne by such Holder in all cases.
RULE 144: Rule 144 promulgated under the Securities Act, as such rule may
be amended from time to time.
SEC: The Securities and Exchange Commission.
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SECURITIES ACT: The Securities Act of 1933, as amended from time to time.
SHELF REGISTRATION: A registration required to be effected pursuant to
Section 2 hereof.
SHELF REGISTRATION STATEMENT: A "shelf" registration statement of the
Company and any other entity required to be a registrant with respect to such
shelf registration statement pursuant to the requirements of the Securities Act
which covers all of the Registrable Securities on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all materials incorporated by
reference therein.
SUSPENSION NOTICE: As set forth in Section 4(d).
SECTION 2. SHELF REGISTRATION UNDER THE SECURITIES ACT.
(a) Filing of Shelf Registration Statement. Subject to Sections 2(c) and 4
hereof, not later than the date which is thirteen months after the Effective
Time (as defined in the Merger Agreement), the Company shall cause to be filed
with the SEC a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities in accordance with the terms hereof
and will use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC as soon as reasonably practicable;
provided that the Company shall not be required to file the Shelf Registration
unless it has received, during the period set forth in Section 2(c), Holder's
Questionnaires from the Majority Holders. The Company agrees to use its
reasonable best efforts to keep the Shelf Registration Statement continuously in
effect under the Securities Act until paragraph (k) of Rule 144 is available for
the sale of the Registrable Securities by the Holder(s) thereof (assuming for
such purpose that no such Holder is an "affiliate" as defined in Rule 144) or
until all of the Registrable Securities have been sold by the Holders, whichever
occurs first. Such Shelf Registration Statement shall be available for the sale
of the Registrable Securities in accordance with the intended method or methods
of distribution by the selling Holders thereof and shall comply as to form in
all material respects with the requirements of the applicable form.
(b) Expenses. Registration Expenses in connection with the registration
pursuant to Section 2(a) shall be paid by the Company. Each Holder shall pay
all underwriting discounts and commissions, brokerage or dealer fees, the fees
and disbursements of counsel, accountants or other representatives of such
Holder and transfer taxes, if any, relating to the sale or disposition of the
Holder's Registrable Securities.
(c) Delivery of Holder's Questionnaire. Any Holder who desires to be
eligible to make offers and sales of its Registrable Securities under the Shelf
Registration Statement shall deliver a completed and executed Holder's
Questionnaire to the Company during the 30-day period beginning on the seventh
day prior to the first anniversary of the date hereof. Any Holder who does not
deliver
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a Holder's Questionnaire (currently dated, completed and executed) to the
Company during such period shall not be eligible to make offers or sales
pursuant to the Shelf Registration Statement.
SECTION 3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the Shelf
Registration Statement pursuant to Section 2 hereof, and subject to Sections
3(a) and 4, the Company shall do the following during the period in which the
Shelf Registration Statement is required to be kept effective:
(a) Amendments; Comment Responses. (i) Prepare and file with the SEC such
amendments and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective for the
applicable period; (ii) upon the occurrence of any event contemplated by Section
3(d)(iv) hereof, use its reasonable efforts promptly to prepare and file a
supplement or prepare, file and obtain effectiveness of a post-effective
amendment to the Shelf Registration Statement or a related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any 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 the light of the circumstances under which
they were made, not misleading; (iii) cause each Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 or any similar rule that may be adopted under the
Securities Act; and (iv) respond promptly to any comments received from the SEC
with respect to the Shelf Registration Statement, or any amendment,
post-effective amendment or supplement relating thereto.
(b) Copies of Prospectus. Furnish to each Holder of Registrable Securities
who is eligible to make offers and sales under the Shelf Registration Statement,
without charge, as many copies of each applicable Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities.
(c) Blue Sky. If required by applicable law, use its reasonable best
efforts to register or qualify the Registrable Securities under all applicable
state securities or "blue sky" laws of such states as any Holder of Registrable
Securities who is eligible to make offers and sales under the Shelf Registration
Statement shall reasonably request in writing, keep each such registration or
qualification effective during the period in which the Shelf Registration
Statement is required to be kept effective or during the period offers or sales
are being made by a Holder that has delivered a Registration Notice to the
Company, whichever is shorter, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to consummate the
disposition of such Registrable Securities owned by such Holder in each such
state; provided,
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however, that the Company shall not be required (i) to qualify generally to do
business in any jurisdiction or to register as a broker or dealer in such
jurisdiction where it would not be required so to qualify or register but for
this Section 3(c), (ii) to subject itself to taxation in any such jurisdiction,
(iii) to submit to the service of process in suits other than those arising out
of the offer or sale of the securities covered by the registration statement in
any such jurisdiction or (iv) to register or qualify the Registrable Securities
in any jurisdiction in which an exemption for such Registrable Securities or for
the offer and sale thereof by such Holder is available.
(d) Notification. Promptly notify each Holder who is eligible to make
offers and sales under the Shelf Registration Statement when the Shelf
Registration Statement has become effective and when the Registrable Securities
have been registered or qualified in each state requested (or that an exemption
from registration or qualification is available) and promptly notify each such
Holder (i) when any post-effective amendments and supplements to the Shelf
Registration Statement become effective with the SEC or any state securities
authority, (ii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose, (iii) if the Company
receives any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period the Shelf Registration Statement is effective as a result of which the
Shelf Registration Statement or a related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading.
(e) Stop Orders. Make every reasonable effort to obtain the withdrawal of
any order by the SEC or any state securities authority suspending the
effectiveness of the Shelf Registration Statement at the earliest possible
moment.
(f) Copies of Shelf Registration Statement and Amendment. Furnish to each
Holder of Registrable Securities who is eligible to make offers and sales under
the Shelf Registration Statement, without charge upon request of such Holder,
one conformed copy of the Shelf Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested).
(g) Stock Certificates. Cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any Securities
Act legend and enable certificates for such Registrable Securities to be issued
for such numbers of shares and registered in such names as the selling Holders
may reasonably request.
(h) Earnings Statement. Make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least 12 months which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
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SECTION 4. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Sections 2 and 3 hereof,
each Holder agrees as follows:
(a) Offers and Sales. The Holder will not offer or sell its Registrable
Securities under the Shelf Registration Statement unless (i) the Shelf
Registration Statement has become effective and has not been terminated and such
Holder is eligible to make offers and sales under the Shelf Registration
Statement pursuant to Section 2(c) hereof, (ii) such Holder has received copies
of the Prospectus (as it may be supplemented or amended as contemplated by
Section 3(a) hereof), and (iii) if any post-effective amendment has been filed
with the SEC of which filing such Holder has received notice, such Holder has
received notice that any such post-effective amendment has become effective.
(b) Need to Use Updated Prospectus. Upon receipt of a written notice from
the Company of the happening of any event of the kind described in Section
3(d)(iv) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such
Holder receives copies of the supplemented or amended Prospectus contemplated by
Section 3(a) hereof and receives notice that any post-effective amendment has
become effective, and, if so directed by the Company, such Holder will deliver
to the Company all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event that any
Holder uses a Prospectus in connection with the offer and sale of Registrable
Securities covered by such Prospectus, such Holder will use only the latest
version of such Prospectus provided to it by the Company.
(c) Notification of Sales. Upon the sale or disposition of any of its
Registrable Securities pursuant to the Shelf Registration Statement, the Holder
will promptly notify the Company in writing of the number of Registrable
Securities then being sold or disposed of.
(d) Moratorium. If the Company determines in its good faith judgment,
after consultation with counsel, that the filing of the Shelf Registration
Statement under Section 2 hereof or the use of any Prospectus would require the
disclosure of important information which the Company has a bona fide business
purpose for preserving as confidential or the disclosure of which would impede
the Company's ability to consummate a significant transaction, upon written
notice of such determination by the Company (a "Suspension Notice"), the rights
of the Holders to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take action
with respect to the registration or sale of any Registrable Securities pursuant
to the Shelf Registration Statement (including any action contemplated by
Sections 2 or 3 hereof) will be suspended until the earlier of the 90th day
after the giving of the Suspension Notice and the date upon which the Company
notifies the Holder in writing that suspension of such rights for the grounds
set forth in this Section 4(d) is no longer necessary (the "Advice"). In the
event that
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the Company shall give any Suspension Notice, the Company shall use its
reasonable best efforts and take such actions as are reasonably necessary to
render the Advice as promptly as practicable.
(e) Offering by Company. In the case of the registration of any
underwritten equity offering proposed by the Company, the Holders shall, if
requested in writing by the managing underwriter or underwriters administering
such offering, not effect any offer, sale or distribution of Registrable
Securities (or any option or right to acquire Registrable Securities) during the
period commencing on the 10th business day prior to the expected effective date
(which date shall be stated in such notice) of the registration statement
covering such underwritten equity offering and ending on the date specified by
such managing underwriter in such written request, which date shall not be later
than six months after such expected date of effectiveness.
(f) Additional Information. In addition to the information set forth in
the Holder's Questionnaire, the Holder of Registrable Securities shall furnish
to the Company in writing such additional information regarding the proposed
distribution by such Holder as the Company may from time to time reasonably
request in writing.
(g) Distribution. Each Holder shall comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Shelf Registration Statement during the applicable period in accordance with the
intended method or methods of distribution stated in the then-current version of
the Prospectus.
SECTION 5. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder and its officers and directors and each person, if
any, who controls the Holder within the meaning of Section 15 of the Securities
Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading:
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company, which consent will not be
unreasonably withheld; and
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(iii) against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 5(a)
does not apply to any Holder with respect to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Holder expressly for
use in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus.
(b) Indemnification by Holder. Each Holder severally and not jointly
agrees to indemnify and hold harmless the Company and the other selling Holders
and each of their directors and officers (including each director and officer of
the Company who signed the Shelf Registration Statement), and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, to the same extent as the indemnity contained in Section 5(a) hereof, but
only insofar as such loss, liability, claim, damage or expense arises out of or
is based upon any untrue statement or omission, or alleged untrue statement or
omission, made in the Shelf Registration Statement (or any amendment thereto) or
any Prospectus in reliance upon and in conformity with written information
furnished to the Company by such selling Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus; provided,
however, that such Holder shall not be obligated to provide such indemnity to
the extent that such losses, liabilities, claims, damages or expenses result
from the failure of the Company to promptly amend or take action to correct or
supplement any such Registration Statement or Prospectus on the basis of
corrected or supplemental information provided in writing by such Holder to the
Company expressly for such purpose; and provided further, that each such
Holder's obligations hereunder shall be limited to an amount equal to the gross
proceeds received by such Holder of the Registrable Securities sold pursuant to
such Registration Statement.
(c) Notice. Each indemnified party shall give reasonably prompt notice to
the indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party (i) shall not relieve it from any liability which it may have
under the indemnity agreement provided in Section 5(a) or (b) unless and to the
extent it did not otherwise learn of such action and the lack of notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided under Section 5(a) or (b). If the
indemnifying party so elects within a reasonable time after receipt of such
notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by the
indemnifying party; provided, however, that, if such indemnified party
reasonably determines that a conflict of interest exists where it is advisable
for such indemnified
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party to be represented by separate counsel or that, upon advice of counsel,
there may be legal defenses available to them which are different from or in
addition to those available to the indemnifying party, then the indemnifying
party shall not be entitled to assume such defense and the indemnified party
shall be entitled to one separate counsel at the indemnifying party's expense.
If an indemnifying party is not so entitled to assume the defense of such action
or does not assume such defense, after having received the notice referred to in
the first sentence of this Section 5(c), the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party. In such event
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party but, if settled with such
consent, the indemnifying party agrees to indemnify the indemnified party or
parties from and against any loss or liability by reason of such settlement upon
the terms and subject to the conditions set forth in this Agreement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is a party, and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding. If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action or proceeding.
(d) Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in this Section 5
is for any reason held to be unenforceable although applicable in accordance
with its terms (by 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), the Company and the selling Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holders, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the selling Holders on the other (in such
proportions that the selling Holders are severally, not jointly, responsible for
the balance), in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The Company and the Holders agree that it would not be just or equitable if
contribution pursuant to this Section 5(d) 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 the immediately preceding paragraph.
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Notwithstanding the foregoing, 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 and no Holder will be required to contribute an
amount in excess of the gross proceeds received or to be received by such Holder
upon the sale of the Registrable Securities pursuant to such Registration
Statement. For purposes of this Section 5(d), each Person, if any, who controls
a Holder within the meaning of Section 15 of the Securities Act and directors
and officers of a Holder shall have the same rights to contribution as such
Holder, and each director of the Company, each officer of the Company who signed
the Shelf Registration Statement and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
SECTION 6. RULE 144 SALES. The Company covenants that it will file the
reports required to be filed by the Company under the Securities Act and the
Exchange Act, so as to enable any Holder to sell Registrable Securities pursuant
to Rule 144 under the Securities Act after the Holder has satisfied the holding
period requirement set forth therein.
SECTION 7. MISCELLANEOUS.
(a) Amendments. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented without the
written consent of the Company and Holders constituting Majority Holders.
Notice of any amendment, modification or supplement to this Agreement adopted in
accordance with this Section 7(a) shall be provided by Company to each Holder of
Registrable Securities at least thirty (30) days prior to the effective date of
such amendment, modification or supplement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier or any courier guaranteeing overnight delivery, (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(b) or provided in a Holder's Questionnaire, which address initially is, with
respect to each Holder, the address set forth on the signature page hereof, or
(ii) if to the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; or at the time delivered if delivered by an air
courier guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
Company and the Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such Person shall
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be deemed a party hereto, shall be entitled to receive the benefits hereof and
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
(d) Entire Agreement. This Agreement represents the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any and all prior oral and written agreements, arrangements and
understandings among the parties hereto with respect to such subject matter.
(e) Paragraph and Section Headings. The paragraph and section headings
contained in this Agreement are for general reference purposes only and shall
not affect in any manner the meaning, interpretation or construction of the
terms or other provisions of this Agreement.
(f) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, APPLICABLE TO
CONTRACTS TO BE MADE, EXECUTED, DELIVERED AND PERFORMED WHOLLY WITHIN SUCH
STATE, AND, IN ANY CASE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF
SUCH STATE.
(g) Severability. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but the illegality or unenforceability of such provision shall have no
effect upon and shall not impair the enforceability of any other provision of
this Agreement.
(h) Specific Performance. The Company and the Holders acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations of
another under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(i) No Waiver. The failure of any party at any time or times to require
performance of any provision hereof shall not affect the right at a later time
to enforce the same. No waiver by any party of any condition, and no breach of
any provision, term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
or have caused this Agreement to be executed and delivered by their respective
officers thereunto duly authorized as of the date first above written.
NEMATRON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, III
President
SHAREHOLDER*
-------------------------
Name:
------------------
Address:
----------------
----------------
----------------
*If you wish to become a party to the Registration Rights Agreement attached as
Annex D to the Proxy Statement included herewith, you must execute this
signature page on the line under "SHAREHOLDER," print your name and address and
return this page to the Company, along with your proxy and the signature page to
the Representation Letter, in the envelope provided.
12
13
SHAREHOLDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ N.P. Lutte
-----------------------------------
▇▇. ▇.▇. ▇▇▇▇▇
Avenals Farm, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
England
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13
14
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇, as joint tenant
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ Tin ▇. ▇▇▇▇
-----------------------------------
Tin ▇. ▇▇▇▇, as joint tenant
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EUROTHERM PLC
By: /s/ ▇.▇. ▇▇▇▇▇▇
-----------------------------------
▇. ▇. ▇▇▇▇▇▇
Eurotherm plc
Finance Director
Leonardslee
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
14
