REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of November 18, 2010, by and among Bridge Capital Holdings, a
bank holding company and corporation organized in the State of California (the
“Company”), and the
several purchasers signatory hereto (each a “Purchaser” and collectively,
the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of the
date hereof, between the Company and each Purchaser, relating to the potential
purchase of shares of Common Stock (the “Purchase
Agreement”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and each of the Purchasers agree as
follows:
1.
Definitions. As used in this Agreement,
the following terms shall have the following meanings:
a.
“1933 Act”
means the Securities Act of 1933, as amended.
b.
“1934 Act” means the Exchange Act
of 1934, as amended.
c.
“Affiliate” of a Person means any other Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. The term “control” (including the
terms “controlled by” and “under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
d.
“Agreement” has the meaning
set forth in the recitals.
e.
“Blue Sky Filing” has the
meaning set forth in Section
6(a).
f.
“Business Day” means any day
other than Saturday, Sunday or any other day on which commercial banks in the
State of California or City of New York are authorized or required by law to
remain closed.
g.
“Claims” has the meaning set
forth in Section
6(a).
h.
“Common Shares” means those
shares of the Company’s common stock, no par value, purchased by the Purchasers
from the Company under the Purchase Agreement.
i.
“Common Stock” means the
Company’s common stock, no par value.
j.
“Company” has the meaning set
forth in the recitals and includes the Company’s successors by merger,
acquisition, reorganization or otherwise.
k.
“Effective Date” means the
date a Registration Statement is declared effective by the SEC.
l.
“Effectiveness Deadline”
means the date that is 60 days after the date of the Filing Deadline or, if the
SEC staff reviews or provides comments on the applicable Registration Statement,
90 days after the date of the Filing Deadline.
m.
“Event” has the meaning set
forth in Section
2(a)(i).
n.
“Event Date” has the meaning
set forth in Section
2(a)(i).
o.
“Filing Deadline”
has the meaning set forth in Section
2(a)(i).
p.
“Grace Period” has the meaning
set forth in Section
3(o).
q.
“Indemnified Damages” has the
meaning set forth in Section
6(a).
r.
“Indemnified Party” has the
meaning set forth in Section
6(b).
s.
“Indemnified Person” has the
meaning set forth in Section
6(a).
t.
“Initial Registration
Statement” has the meaning set forth in Section
2(a)(i).
u.
“Legal Counsel” has the
meaning set forth in Section
3(c).
v.
“Liquidated Damages” has the
meaning set forth in Section
2(a)(i).
w.
New Registration Statement
has the meaning set forth in Section
2(a)(i).
x.
“Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
y.
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the 1933 Act), 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 a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
z.
“Purchaser” means a Purchaser
or any transferee or assignee thereof to whom a Purchaser assigns its rights
under this Agreement and who agrees to become bound by the provisions of this
Agreement in accordance with Section 8 and any
transferee or assignee thereof to whom a transferee or assignee assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section
8.
aa.
“register,” “registered,” and
“registration” refer to a registration effected by preparing and filing
one or more Registration Statements (as defined below) in compliance with the
1933 Act and pursuant to Rule 415 and the declaration or ordering of
effectiveness of such Registration Statement(s) by the SEC.
bb.
“Registrable Securities”
means all of the Common Shares and any securities issued or distributed or
issuable in respect thereof by way of a stock split, dividend or other
distribution or in connection with a combination of shares, recapitalization,
merger consolidation or other reorganization or similar event with
respect to the Common Shares;
provided, that Common Shares shall cease to be Registrable Securities
upon the earliest to occur of the following: (A) a sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act (in which case, only such
security sold shall cease to be a Registrable Security); (B) if such Common
Shares are distributed pursuant to Rule 144 or become eligible for sale under
Rule 144, without the requirement for the Company to be in compliance with the
current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if
applicable) and without volume or manner of sale restrictions by Purchasers who
are not Affiliates of the Company; (C) if such Common Shares have ceased to be
outstanding; or (D) if such Common Shares have been sold in a private
transaction in which the Purchaser’s rights under this Agreement have not been
assigned to the transferee.
cc.
“Registration Period” has the
meaning set forth in Section
3(a).
dd. “Registration Statement”
means a registration statement or registration statements of the Company filed
under the 1933 Act covering the Registrable Securities.
ee.
“Required Holders” means the
holders of at least a 25% of the Registrable Securities.
ff. “Rule 144” means Rule 144
under the 1933 Act as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
gg.
“Rule 415” means Rule 415
under the 1933 Act as such Rule may be amended from time to time, or any
successor rule providing for offering securities on a continuous or delayed
basis.
hh.
“Rule 424” means Rule 424
under the 1933 Act as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
ii.
“SEC” means the United States
Securities and Exchange Commission.
jj. “SEC Guidance” means (i) any
publicly-available written or oral guidance, comments, requirements or requests
of the SEC staff and (ii) the 1933 Act.
kk.
“Selling Expenses” means all underwriting
discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities, and fees and disbursements of counsel for any holder
of Registrable Securities, except for the fees and disbursements of counsel for
the holders of Registrable Securities required to be paid by the Company
pursuant to Section 5.
ll.
“Violations” has the meaning
set forth in Section
6(a).
(i) The
Company agrees to file with the SEC a Registration Statement under the 1933 Act
on Form S-3 no later than March 31, 2011 (the “Filing Deadline”) covering
the offer and resale of all of the Registrable Securities on a continuous basis
pursuant to Rule 415 (the “Initial Registration
Statement”). The Company shall use commercially reasonable efforts
to have the Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Effectiveness Deadline. By 9:30 am
on the Business Day following the Effective Date, the Company shall file with
the SEC in accordance with Rule 424, the final prospectus to be used in
connection with sales pursuant to such Registration Statement. The Company
and each Purchaser hereby acknowledge that in accordance with Rule 415 or SEC
Guidance, the Company may not be allowed to register all of the Registrable
Securities in the Initial Registration Statement. Notwithstanding the
registration obligations set forth in this Section 2(a)(i), in the event the SEC
informs the Company that all of the Registrable Securities cannot, as a result
of the application of Rule 415, be registered for resale as a secondary offering
on a single registration statement, the Company agrees to promptly inform each
of the Purchasers thereof and use (i) its commercially reasonable efforts to
file amendments to the Initial Registration Statement as required by the SEC or
(ii) upon the written request of the Required Holders, withdraw the Initial
Registration Statement and file a new registration statement (a “New Registration Statement”),
in either case covering the maximum number of Registrable Securities permitted
to be registered by the SEC, on Form S-3 or such other form available to the
Company to register for resale the Registrable Securities as a secondary
offering. Notwithstanding any other provision of this Agreement and
subject to the payment of Liquidated Damages in Section 2(a)(iv), if any SEC
Guidance sets forth a limitation of the number of Registrable Securities or
other shares of Common Stock permitted to be registered on a particular
Registration Statement as a secondary offering, the number of Registrable
Securities or other shares of Common Stock to be registered on such Registration
Statement will be reduced on a pro rata basis. In the event the Company
amends the Initial Registration Statement or files a New Registration Statement,
as the case may be, under clauses (i) or (ii) above, if requested by the
Required Holders, the Company will file with the SEC, as promptly as allowed by
SEC or SEC Guidance provided to the Company or to registrants of securities in
general, one or more registration statements on Form S-3 or such other form
available to the Company to register for resale those Registrable Securities
that were not registered for resale on the Initial Registration Statement, as
amended, or the New Registration Statement.
(ii) Ineligibility for Form
S-3. The Initial Registration Statement shall be on Form S-3. In
the event that Form S-3 is not available for the registration of the resale of
Registrable Securities under the Initial Registration statement or the New
Registration Statement, as the case may be, the Company shall (i) register the
resale of the Registrable Securities on another appropriate Registration
Statement form reasonably acceptable to the Required Holders and (ii) undertake
to register the Registrable Securities on Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of any
Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.
(iii) [Reserved].
(iv) Liquidated
Damages. If: (i) the Initial Registration Statement is not filed
with the SEC on or prior to the Filing Deadline, (ii) the Initial Registration
Statement or the New Registration Statement, as applicable, is not declared
effective by the SEC (or otherwise does not become effective) for any reason on
or prior to the Effectiveness Deadline, other than as a result of any open
issues arising out of any routine SEC review of 1934 Act filings in effect as of
the date hereof, or (iii) after its Effective Date, (A) such Registration
Statement ceases for any reason (including, without limitation, by reason of a
stop order, or the Company’s failure to update the Registration Statement), to
remain continuously effective as to all Registrable Securities for which it is
required to be effective or (B) the Purchasers are not permitted to utilize the
Prospectus therein to resell such Registrable Securities, in the case of (A) and
(B) other than during a Grace Period or (iv) a Grace Period exceeds the time
periods set forth in the proviso in Section 3(o) (any such failure or breach in
clauses (i) through (iv) above being referred to as an “Event”, and, for purposes of
clauses (i), (ii) or (iii), the date on which such Event occurs, or for purposes
of clause (iv) the date on which such Grace Period is exceeded, being referred
to as an “Event Date”),
then, in addition to any other rights the Purchasers may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, the Company shall pay to each Purchaser
that has provided the information specified in Section 4 within the time period
specified in such section, an amount in cash, as liquidated damages and not as a
penalty (“Liquidated
Damages”), equal to 1.0% of the aggregate purchase price paid by such
Purchaser pursuant to the Purchase Agreement for any Registrable Securities held
by such Purchaser on the Event Date. The parties agree that
notwithstanding anything to the contrary herein or in the Purchase Agreement, no
Liquidated Damages shall be payable (i) if, as of the relevant Event Date, the
Registrable Securities may be sold by non-affiliates without volume or manner of
sale restrictions under Rule 144 and the Company is in compliance with the
current public information requirements under Rule 144(c)(1) (or Rule 144(i)(2),
if applicable), as determined by counsel to the Company pursuant to a written
opinion letter to such effect, addressed and reasonably acceptable to the
Company’s stock transfer agent; (ii) with respect to any Registrable Securities
which the Purchaser elects not to register on any applicable Registration
Statement; and (iii) with respect to any period after the expiration of the
Registration Period (it being understood that this sentence shall not relieve
the Company of any Liquidated Damages accruing prior to the Registration
Period). If the Company fails to pay any Liquidated Damages pursuant to
this Section 2(c) in full within five (5) Business Days after the date payable,
the Company will pay interest thereon at a rate of 1.0% per month (or such
lesser maximum amount that is permitted to be paid by applicable law) to the
Purchaser, accruing daily from the date such Liquidated Damages are due until
such amounts, plus all such interest thereon, are paid in full. The
Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event, except in the
case of the first Event Date. The Effectiveness Deadline for a
Registration Statement shall be extended without default or Liquidated Damages
hereunder in the event that the Company’s failure to obtain the effectiveness of
the Registration Statement on a timely basis results from the failure of a
Purchaser to timely provide the Company with information requested by the
Company and necessary to complete the Registration Statement in accordance with
the requirements of the 33 Act (in which case the Effectiveness Deadline would
be extended with respect to Registrable Securities held by such
Purchaser).
b.
Piggy Back Registration
Rights. If, at any time there is not an effective Registration
Statement covering the Registrable Securities, and the Company shall determine
to prepare and file with the SEC a Registration Statement relating to an
offering for its own account or the account of others under the 1933 Act of any
of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the 0000 Xxx) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to the Purchasers a
written notice of such determination at least twenty days prior to the filing of
any such Registration Statement and shall automatically include in such
Registration Statement all Registrable Securities for resale and offer on a
continuous basis pursuant to Rule 415; provided, however, that (i) if, at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company determines for any reason not to proceed
with such registration, the Company will be relieved of its obligation to
register any Registrable Securities in connection with such registration, (ii)
in case of a determination by the Company to delay registration of its
securities, the Company will be permitted to delay the registration of
Registrable Securities for the same period as the delay in registering such
other securities, (iii) each Purchaser is subject to confidentiality obligations
with respect to any information gained in this process or any other material
non-public information he, she or it obtains, (iv) each Purchaser is subject to
all applicable laws relating to xxxxxxx xxxxxxx or similar restrictions; and (v)
if all of the Registrable Securities of the Purchasers cannot be so included due
to Rule 415, then the Company may reduce the number of the Purchasers’
Registrable Securities covered by such Registration Statement to the maximum
number which would enable the Company to conduct such offering in accordance
with the provisions of Rule 415. The Company shall cause any Registration
Statement filed under Section 2.a) to be declared effective under the 1933 Act
as promptly as possible after the filing thereof. By 5:00 p.m. Eastern Time on
the business day immediately following the Effective Date of such Registration
Statement, the Company shall file with the SEC in accordance with Rule 424 under
the 1933 Act the final prospectus to be used in connection with sales pursuant
to such Registration Statement (whether or not such filing is technically
required under such Rule).
c.
Allocation of Registrable
Securities; Cut Back. The initial number of Registrable Securities
included in any Registration Statement and any increase in the number of
Registrable Securities included therein shall be allocated pro rata among the
Purchasers according to the total amount of securities entitled to be included
therein owned by each Purchaser or in such other proportions as shall mutually
be agreed to by such Purchasers. In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the holders of at least a majority of the
Registrable Securities; provided, that to the extent required by any agreement
or covenant of the Company in effect on the date hereof granting registration
rights to any holder of its securities, the Company may include such securities
on any Registration Statement without the consent of the holders of at least a
majority of the Registrable Securities, even if such inclusion reduces the
number of Registrable Securities covered by such Registration Statement.
In the event all of the Registrable Securities cannot be included in a
Registration Statement under this Section 2 due to Rule 415 or
underwriter cutbacks, then the Company, unless otherwise prohibited by the SEC,
shall cause the Registrable Securities of the Purchasers to be included in such
Registration Statement to be reduced pro rata based on the number of Registrable
Securities held by all of the Purchasers. In the event the
Company amends or reduces the number of Registrable Securities covered by a
Registration Statement pursuant to this Section 2, the Company will use its
commercially reasonable efforts to file with the SEC, as promptly as allowed by
the SEC or SEC Guidance provided to the Company or to registrants of securities
in general, one or more Registration Statements on Form S-3 or, pursuant to
Section 2(a)(ii), such other form available to the Company to register for
resale those Registrable Securities that were not registered for resale on such
Registration Statement.
a.
The Company shall
keep each Registration Statement effective pursuant to Rule 415 at all times
until the earlier of (i) the date as of which the Common Stock covered by such
Registration Statement cease to be Registrable Securities or (ii) the date on
which each Purchaser shall have sold all of the Registrable Securities covered
by such Registration Statement (the “Registration Period”). The
Company shall ensure that each Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein) shall 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 case of
prospectuses, in the light of the circumstances in which they were made) not
misleading.
c.
The holders of at
least a majority of the Registrable Securities shall have the right to select
one legal counsel to review and oversee any registration pursuant to this
Agreement (“Legal
Counsel”), as designated by the holders of at least a majority of the
Registrable Securities. The Company and Legal Counsel shall reasonably cooperate
with each other in performing the Company’s obligations under this
Agreement. The Company shall (A) permit Legal Counsel to review and
comment upon (i) a Registration Statement at least five (5) Business Days prior
to its filing with the SEC and (ii) all amendments and supplements to all
Registration Statements (except for Annual Reports on Form 10-K, and Reports on
Form 10-Q and any similar or successor reports) within a reasonable number of
days prior to their filing with the SEC, and (B) not file any Registration
Statement or amendment or supplement thereto in a form to which Legal Counsel
reasonably objects. The Company shall not submit a request for acceleration of
the effectiveness of a Registration Statement or any amendment or supplement
thereto without the prior approval of Legal Counsel, which consent shall not be
unreasonably withheld. The Company shall furnish to Legal Counsel, without
charge, (i) copies of any correspondence from the SEC or the staff of the SEC to
the Company or its representatives relating to any Registration Statement, (ii)
promptly after the same is prepared and filed with the SEC, one copy of any
Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference, if
requested by the Purchasers, and all exhibits and (iii) upon the effectiveness
of any Registration Statement, one copy of the prospectus included in such
Registration Statement and all amendments and supplements thereto. The Company
shall reasonably cooperate with Legal Counsel in performing the Company’s
obligations pursuant to this Section
3.
h.
The Company shall
notify the Purchasers in writing of the happening of any event, as promptly as
practicable after becoming aware of such event, as a result of which the
prospectus included in a Registration Statement, as then in effect, includes an
untrue statement of a material fact or omission 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
(provided that in no event shall such notice contain any material, nonpublic
information), and, subject to Section
3(o), promptly prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission, and deliver ten (10)
copies of such supplement or amendment to the Purchasers (or such other number
of copies as the Purchasers may reasonably request).
i.
The Company shall
promptly notify the Purchasers in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and when a
Registration Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to the Purchasers by
facsimile on the same day of such effectiveness and by overnight mail), (ii) of
any request by the SEC for amendments or supplements to a Registration Statement
or related prospectus or related information, and (iii) of the Company’s
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.
j.
The Company shall
hold in confidence and not make any disclosure of information concerning the
Purchasers provided to the Company unless (i) disclosure of such information is
necessary to comply with federal or state securities laws, (ii) the disclosure
of such information is necessary to avoid or correct a misstatement or omission
in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or
governmental body of competent jurisdiction, or (iv) such information has been
made generally available to the public other than by disclosure in violation of
this Agreement or any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning a Purchaser is sought in
or by a court or governmental body of competent jurisdiction or through other
means, give prompt written notice to the Purchaser and allow such Purchaser, at
the Purchaser’s expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
l.
If requested by a
Purchaser, the Company shall (i) as soon as practicable incorporate in a
prospectus supplement or post-effective amendment such information as the
Purchaser reasonably requests to be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering; (ii) as soon
as practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as soon as
practicable, supplement or make amendments to any Registration Statement if
reasonably requested by a Purchaser holding any Registrable
Securities.
m.
The Company shall use
commercially reasonable efforts to cause the Registrable Securities covered by a
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to consummate the
disposition of such Registrable Securities.
n.
The Company
shall comply with all applicable rules and regulations of the SEC in
connection with any registration hereunder.
4.
Obligations
of the Purchasers.
b.
Each Purchaser, by
such Purchaser’s acceptance of the Registrable Securities, agrees to cooperate
with the Company as reasonably requested by the Company in connection with the
preparation and filing of any Registration Statement hereunder, unless such
Purchaser has notified the Company in writing of such Purchaser’s election to
exclude all of such Purchaser’s Registrable Securities from such Registration
Statement.
d.
Each Purchaser
covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it or an exemption therefrom in
connection with sales of Registrable Securities pursuant to the Registration
Statement.
d.
The indemnification
required by this Section 6 shall
be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages
are incurred.
e.
The indemnity
agreements contained herein shall be in addition to (i) any cause of action or
similar right of the Indemnified Party or Indemnified Person against the
indemnifying party or others, and (ii) any liabilities the indemnifying party
may be subject to pursuant to the law.
10.
Rule 144
Compliance.
With a view to making available to the holders of Registrable Securities
the benefits of Rule 144 under the Securities Act and any other rule or
regulation of the SEC that may at any time permit a holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3 (or any successor form), the Company shall:
a.
make and keep
public information available, as those terms are understood and defined in Rule
144 at all times;
b.
file with the SEC
in a timely manner all reports and other documents required of the Company under
the 1933 Act and the 1934 Act; and
c.
furnish to any
holder so long as the holder owns Registrable Securities, promptly upon request,
a written statement by the SEC as to its compliance with the reporting
requirements of Rule 144 under the 1933 Act and of the 1933 Act and the 1934
Act, a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed or furnished by the Company as such
holder may reasonably request in connection with the sale of Registrable
Securities without registration.
11.
Preservation
of Rights.
The Company shall not, for so long as there are Registrable Securities,
(a) grant any registration rights to third parties which are more favorable than
or inconsistent with the rights granted hereunder, or (b) enter into any
agreement, take any action, or permit any change to occur, with respect to its
securities that violates or subordinates the rights expressly granted to the
holders of Registrable Securities in this Agreement.
12.
Miscellaneous.
a.
A Person is deemed
to be a holder of Registrable Securities whenever such Person owns or is deemed
to own of record such Registrable Securities.
b.
Any notices,
consents, waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have
been delivered: (i) upon receipt, when delivered personally, (ii) upon receipt,
when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party), so long as such
facsimile is followed by mail delivery of the same information contained in such
facsimile, or (iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses for such communications shall be:
|
If
to the Company:
|
00 Xxxxxxx Xxxxxxxxx
Xxx Xxxx,
Xxxxxxxxxx 00000
Attention:
Chief Financial Officer
Telephone:
(000) 000-0000
Fax: (000)
000-0000
|
With
a copy to:
|
Xxxxxxx
XxXxxxxxx XXX
|
Xxxxx Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx X.
Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to a
Purchaser, to the address set forth underneath such Purchaser’s name on the
signature page hereto.
Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, or (B) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, or receipt from a
nationally recognized overnight delivery service in accordance with clause (i)
or (iii) above, respectively.
c.
Failure of any
party to exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
d.
All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of California,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of California or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of
California. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of San
Francisco, State of California for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
e.
This Agreement and
the instruments referenced herein constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and thereof. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Agreement and the instruments
referenced herein supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and
thereof.
f.
Subject
to the requirements of Section
8, this Agreement shall inure to the benefit of and be binding upon the
permitted successors and assigns of each of the parties hereto.
g.
The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
h.
This Agreement may
be executed in identical counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to the other party hereto by
facsimile transmission of a copy of this Agreement bearing the signature of the
party so delivering this Agreement.
i.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
j.
All
consents and other determinations required to be made by any Purchaser pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the holders of at least a majority of the Registrable
Securities.
k.
The language used
in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent and no rules of strict construction will be applied
against any party.
l.
This Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person.
m.
As used herein, “Dollar”,
“US Dollar” and “$” each mean the lawful money of the United
States.
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
By:
|
|
|
Name:
|
||
Title:
|
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME
OF INVESTING ENTITY
|
||
AUTHORIZED
SIGNATORY
|
||
By:
|
||
Name:
|
||
Title:
|
ADDRESS
FOR NOTICE
|
||
c/o:
|
|
|
Street:
|
|
|
City/State/Zip:
|
|
|
Attention:
|
|
|
Tel:
|
|
|
Fax:
|
|
|
Email:
|
|