EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of September 25, 1996,
between Super Vision International, Inc., a corporation duly
organized and validly existing under the laws of the State of
Delaware (hereinafter referred to as the "Corporation") and Hayward
Industries, Inc., a corporation duly organized and validly existing
under the laws of the State of New Jersey (hereinafter referred to
as the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Corporation and the Purchaser are parties to a
Stock Purchase Agreement dated as of September 25, 1996
(hereinafter referred to as the "Purchase Agreement") providing
for, among other matters, the issuance and delivery by the
Corporation to the Purchaser of certain shares (hereinafter
referred to as the "Closing Shares") of the class A common stock,
$.001 par value (as the same may be constituted from time to time
hereinafter referred to as the "Common Stock"), of the Corporation
and its Initial Warrants and Protective Warrants (as defined in the
Purchase Agreement), each dated this date (hereinafter referred to
as the "Warrants") exercisable with respect to the number of shares
of Common Stock specified therein (hereinafter referred to as the
"Warrant Shares" and, together with the Closing Shares, the
"Transaction Shares") of Common Stock; and
WHEREAS, the Purchaser has also entered into an agreement
dated as of September 25, 1996 (hereinafter referred to as the
"Option Agreement") with Xxxxx Kingstone (hereinafter referred to
as the "Seller") providing for the purchase, at the election of the
Purchaser, of certain securities of the Corporation covered thereby
(hereinafter referred to as the "Option Shares"); and
WHEREAS, it is a condition to the acquisition and acceptance
by the Purchaser of the Closing Shares and the Warrants that the
Corporation execute and deliver this Agreement to the Purchaser;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements herein contained the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following additional terms
shall have the following respective meanings:
The term "Mandatory Registration" shall have the meaning set
forth in Paragraph A of Article III hereof.
The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
The term "Incidental Registration" shall have the meaning set
forth in Paragraph A of Article IV.
The term "a majority of the Registrable Securities" shall mean
more than 50% of the number of shares of the Registrable Secu-
rities, and shall apply mutatis mutandi whenever a percentage of
Registrable Securities greater than a majority is required in this
Agreement.
The term "Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
The term "Prospectus" shall mean the prospectus included in
any Registration Statement, 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
Registration Statement and all other amendments and supplements to
the Prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
The term "Registration Expenses" shall have the meaning set
forth in Article VII.
The term "Registrable Securities" shall mean (i) the
Transaction Shares, (ii) the Option Shares, and (iii) any
securities issued or issuable with respect to the securities
referred to in clauses (i) and/or (ii) immediately preceding by way
of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization; provided, however, that a security ceases to
be a Registrable Security when it is no longer a Restricted
Security.
The term "Registration Statement" shall mean any registration
statement of the Corporation which covers Registrable Securities
pursuant to the provisions of this Agreement, including the
Prospectus, amendments (including post-effective amendments) and
supplements to such Registration Statement.
The term "Restricted Securities" shall mean any security
unless or until: (i) it has been effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it; (ii) it is distributed to the public
pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act; or (iii) it has otherwise been
transferred and a new certificate or other evidence of ownership
for it not bearing a restrictive legend pursuant to the Securities
Act and not subject to any stop transfer order has been delivered
by or on behalf of the Corporation.
The term "Securities Act" shall mean the Securities Act of
1933, as amended, as amended from time to time.
The term "Selling Expenses" shall have the meaning set forth
in Article VII.
The term "SEC" shall mean the Securities and Exchange
Commission.
The term "underwritten registration" or "underwritten
offering" shall mean a registration in which securities of the
Corporation are sold pursuant to a firm commitment underwriting to
an underwriter at a fixed price for reoffering or pursuant to
agency or best efforts arrangements with an underwriter.
ARTICLE II
SECURITIES SUBJECT TO THIS AGREEMENT
A. Registrable Securities. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
B. Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns
Registrable Securities or has the right to acquire such Registrable
Securities, whether or not such acquisition has actually been
effected, and whether or not such Registrable Securities or such
rights are in the name of a nominee or custodian, and disregarding
any contractual conditions relating to the exercise of such right.
Without limiting the generality of the foregoing, each holder of
the Warrants shall be deemed a holder of Registrable Securities.
Notwithstanding the foregoing, no beneficiary of any rights under
the Option Agreement shall be deemed to hold any Option Shares
unless and until the conditions to release thereof to the Seller
pursuant to the escrow agreement dated January 21, 1994 between the
Seller and the Corporation have been met.
ARTICLE III
MANDATORY REGISTRATION
A. Required Registration. The Corporation covenants that:
(i) as promptly as practicable subsequent to the date
hereof (but in no event later than the first anniversary of
the date hereof), and
(ii) as promptly as practicable after the exercise of
any Warrants (but in no event later than the first anniversary
of the date of such exercise), and
(iii) as promptly as practicable after the acquisition
of any Option Shares pursuant to the Option Agreement (but in
no event later than the first anniversary of such
acquisition),
it shall prepare and file with the Securities and Exchange
Commission a Registration Statement covering the proposed offer and
sale of such Registrable Securities (each herein referred to as a
"Mandatory Registration"); provided, however, that, subject to
compliance with applicable securities laws, the Corporation, at its
option, may in any such case earlier prepare and file with the
Securities and Exchange Commission a Registration Statement with
respect to all such Registrable Securities at any time after the
date of this Agreement (it being understood and agreed that the
obligations of the Corporation under clauses (ii) and (iii)
immediately preceding shall not be deemed satisfied under such
earlier filed Registration Statement unless such Registration
Statement is kept effective through the period required under
Paragraph B of Article VI hereof (but with the applicable period
measured by initial reference in each case to the date of exercise
of the Warrants, or acquisition of the Option Shares, requiring
such Mandatory Registration), failing which an additional Mandatory
Registration or Mandatory Registrations shall be effectuated as
contemplated without reference to this proviso).
B. Expenses. The Corporation shall pay all Registration
Expenses related to each such registration, whether or not the
Registration Statement with respect to such registration has become
effective, and all other expenses incurred by the Corporation in
complying with this Article III. All Selling Expenses related to
such registration shall be borne by the participating sellers
(including the Corporation, if a seller), in proportion to the
number of shares sold by each, or by such sellers as they may
agree.
C. Incidental Rights to Mandatory Registrations
The Corporation and any of its securityholders shall have
the right to include any of the Corporation's securities in any
registration initiated under Paragraph A of this Article III. If
any securityholders of the Corporation (other than the holders of
Registrable Securities in such capacity) register securities of the
Corporation in a Mandatory Registration (in accordance with the
provisions of this Paragraph C), such holders shall pay the fees
and expenses of counsel to such holders and the incremental amount
of Registration Expenses incurred as a result of their
participation unless the Corporation has agreed to pay such
expenses and, in the opinion of counsel to the Corporation, such
payment shall not affect the ability of the Registrable Shares to
be qualified under the blue sky laws of any jurisdiction.
ARTICLE IV
INCIDENTAL REGISTRATIONS
A. Notice and Request for Incidental Registration. Whenever
the Corporation proposes to register any of its securities under
the Securities Act, other than pursuant to a Mandatory Registration
or a registration on Forms S-4 or S-8 or comparable forms
(hereinafter referred to as an "Incidental Registration"), the
Corporation shall give written notice to all holders of Registrable
Securities of its intention to effect such a registration not later
than the earlier to occur of (i) the tenth day following receipt by
the Corporation of notice of exercise of other demand registration
rights or (ii) 45 days prior to the anticipated filing date.
Subject to the provisions of Paragraphs C and D of this Article IV,
the Corporation shall include in such Incidental Registration all
Registrable Securities with respect to which the Corporation has
received written requests for inclusion therein within 15 business
days after the receipt by the applicable holder of the
Corporation's notice. If an Incidental Registration is an
underwritten offering effected:
(i) under Paragraph C of this Article IV hereof, all
Persons whose securities are included in the Incidental
Registration shall be obligated to sell their securities on
the same terms and conditions as apply to the securities being
issued and sold by the Corporation; or
(ii) under Paragraph D of this Article IV hereof, all
Persons whose securities are included in the Incidental
Registration shall be obligated to sell their securities on
the same terms and conditions as apply to the securities being
sold by the Person or Persons who initiated the Incidental
Registration under said paragraph.
B. Incidental Registration Expenses. The Corporation shall
pay all Registration Expenses related to such registration, or
incurred as a result of the participation in an Incidental
Registration of the holders of Registrable Securities, whether or
not the Registration Statement with respect to such registration
has become effective,and all other expenses incurred by the
Corporation in complying with this Article IV. Any Selling
Expenses related to such registration shall be borne by the
participating sellers (including the Corporation, if a seller), in
proportion to the number of shares sold by each, or by such sellers
as they may agree.
C. Priority on Underwritten Primary Registration. If an
Incidental Registration is an underwritten primary registration on
behalf of the Corporation, and the managing underwriters advise the
Corporation in writing that in their sole discretion the total
number or dollar amount of securities requested to be included in
such registration would reduce the number of shares to be offered
by the Corporation or interfere with the successful marketing of
the shares of stock offered by the Corporation, the Corporation
shall include in such registration:
(i) first, all securities the Corporation proposes to
sell; and
(ii) second, the Registrable Securities and such other
securities (provided such securities are of the same class as
the securities being sold by the Corporation) requested to be
included in such registration in excess of the number of
securities the Corporation proposes to sell which, in the sole
discretion of such underwriters, would not interfere with the
successful marketing of the shares of stock offered by the
Corporation (allocated pro rata among the holders of such
Registrable Securities and other securities on the basis of
the number of securities requested to be included therein by
each such holder).
D. Priority on Underwritten Secondary Registration. If an
Incidental Registration is an underwritten secondary registration
on behalf of holders of the Corporation's securities, and the
managing underwriters advise the Corporation in writing that in
their sole discretion the number of securities requested to be
included in such registration would reduce the number of shares to
be offered by the securityholders initiating such registration or
interfere with the successful marketing of the shares of stock
offered by the securityholders initiating such registration, the
Corporation shall include in such registration:
(i) first, all securities requested to be included in
such registration by the securityholders initiating such
registration; and
(ii) second, up to the full number of Registrable
Securities and such other securities (provided such securities
are of the same class as the securities being sold by the
Corporation) requested to be included in such registration in
excess of the number of securities the securityholders
initiating such registration propose to sell which, in the
sole discretion of such underwriters, would not interfere with
the successful marketing of the shares of stock offered by the
securityholders initiating such registration (allocated pro
rata among the holders of such Registrable Securities and
other securities on the basis of the number of securities
requested to be included therein by each such holder).
E. Selection of Underwriters. If any Incidental Registration
is an underwritten offering, the Corporation shall have the right
to select the investment banker or investment bankers and manager
or managers to administer the offering.
ARTICLE V
HOLDBACK AGREEMENTS
Each holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement filed pursuant
to Article IV hereof agrees, if requested by the managing
underwriters, not to effect any public sale or distribution of
securities of the Corporation of the same class as the securities
included in such Registration Statement, including a sale pursuant
to Rule 144 under the Securities Act (except as part of such
underwritten registration) during the 30-day period prior to, and
during the 180-day period beginning on, the closing date of each
underwritten offering of Registrable Securities made pursuant to
such Registration Statement, to the extent timely notified in
writing by the Corporation or the managing underwriters. The
foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or
regulation from entering any such agreement.
ARTICLE VI
REGISTRATION PROCEDURES
Whenever Registrable Securities are required to be registered
pursuant to this Agreement, the Corporation shall use its best
efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the
Corporation shall as expeditiously as possible:
A. prepare and file with the SEC, not later than twelve
months after required to file a Registration Statement for a
Mandatory Registration, a Registration Statement on a form for
which the Corporation then qualifies which is satisfactory to the
Corporation and the holders of a majority of the Registrable
Securities being registered and which form shall be available for
the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof, and use its
best efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial
filing of the Registration Statement, the Corporation shall furnish
to a representative designated by the holders of a majority of the
Registrable Securities covered by such Registration Statement
copies of all such documents proposed to be filed, which documents
will be subject to the review of such holders, and the Corporation
shall not file any Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (including such documents
incorporated by reference) to which the holders of a majority of
the Registrable Securities covered by such Registration Statement,
if any, shall reasonably object;
B. prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for a period
of not less than six months (or, in the event of a Mandatory
Registration, and subject to the provisions with respect to
measurement of such period under the proviso contained in Paragraph
A of Article III hereof, three years), or such shorter period which
will terminate when all Registrable Securities covered by such
Registration Statement have been sold or withdrawn; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act (except that, in each case upon prior
written notice to the holders of Registrable Securities covered by
such Prospectus, the Corporation shall not be obligated to maintain
the currentness of the Prospectus for up to three periods not in
excess of 90 days in the aggregate in each calendar year after
registration, if the Board of Directors of the Corporation in good
faith determines that the best interests of the Corporation would
be materially impaired by disclosure at that time in the Prospectus
of material, non-public information with respect to the
Corporation); and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance
with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to the
Prospectus;
C. notify the selling holders of Registrable Securities
promptly,
(i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Registration Statement or any post-effective amendment,
when the same has become effective;
(ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or
for additional information;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Corporation of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event which makes any
statement made in the Registration Statement, the Prospectus
or any document incorporated therein by reference untrue or
which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein
by reference in order to make the statements therein not
misleading;
D. make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
E. if requested by a holder of Registrable Securities being
sold, immediately incorporate in a Prospectus supplement or
post-effective amendment such information as the holders of a
majority of the Registrable Securities being sold and their
respective counsel reasonably conclude should be included in the
Registration Statement, so that such Registration Statement
conforms in both form and substance to the requirements of the
Securities Act, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or
posteffective amendment; in each case under this Paragraph E
subject to the exception contained under Paragraph B of this
Article VI;
F. promptly prior to the filing of any document which is to
be incorporated by reference into the Registration Statement or the
Prospectus (after initial filing of the Registration Statement)
provide copies of such document to a representative designated by
the holders of a majority of Registrable Securities covered by the
Registration Statement, make the Corporation's representatives
available for discussion of such document and make such changes in
such document prior to the filing thereof as counsel for such
selling holders may reasonably request;
G. furnish to each selling holder of Registrable Securities,
without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated
by reference);
H. deliver to each selling holder of Registrable Securities
without charge, a reasonable number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request (and the
Corporation hereby consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling holders of
Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto);
I. prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of
Registrable Securities, and their respective counsel in connection
with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as any seller reasonably requests in writing
and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided,
however, that the Corporation shall not be required to qualify
generally to do business in any jurisdiction where it is not then
so qualified or to take any action which would subject it to
general service of process in any such jurisdiction where it is not
then so subject;
J. 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 restrictive legends;
K. upon the occurrence of any event contemplated by clause
(v) of Paragraph C of this Article VI, prepare a supplement or
post-effective amendment to the Registration Statement or the
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, the Prospectus
shall not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein
not misleading; in each case under this Paragraph K subject to the
exception contained under Paragraph B of this Article VI;
L. cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Corporation are then listed
if requested by the holders of a majority of such Registrable
Securities if the listing of such securities is then permitted
under the rules of such exchange;
M. take all such other actions in connection therewith in
order to expedite or facilitate the disposition of such Registrable
Securities as may be reasonably requested by the selling holders of
Registrable Securities;
N. make available for inspection by a representative of the
sellers of Registrable Securities, and any attorney, accountant or
other agent retained by the sellers, all financial and other
records, pertinent corporate documents and properties of the
Corporation, and cause the Corporation's officers, directors and
employees to supply all information reasonably requested by any
such representative, attorney, accountant or agent solely for use
in connection with such registration statement; provided, however,
that any records, information or documents that are designated by
the Corporation in writing as confidential shall be kept
confidential by such Persons pursuant to such reasonable
confidentiality agreements as the Corporation may request;
O. otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally
available to its security holders, earnings statements satisfying
the provisions of Section 11(a) of the Securities Act, no later
than 45 days after the end of any twelve-month period (or 90 days,
if such period is a fiscal year) beginning with the first month of
the Corporation's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements
shall cover said twelve-month periods.
ARTICLE VII
REGISTRATION AND SELLING EXPENSES
For purposes of this Agreement, all underwriting discounts and
selling commissions, and transfer taxes and fees and expenses of
counsel to the holders of Registrable Securities, applicable to the
sale of Registrable Securities (all such expenses being herein
referred to as "Selling Expenses"), and all expenses incident to
the Corporation's performance of or compliance with this Agreement,
including without limitation:
A. all registration and filing fees (including with respect
to filings required to be made with the National Association of
Securities Dealers, Inc.);
B. fees and expenses of compliance with securities or blue
sky laws;
C. printing, messenger, telephone and delivery expenses;
D. fees and disbursements of counsel for the Corporation;
E. fees and disbursements of all independent certified
public accountants of the Corporation; and
F. fees and expenses of other Persons retained by the
Corporation;
(all such expenses being herein called "Registration Expenses")
shall be borne as provided in this Agreement; it being understood
and agreed that the Corporation shall, in any event, pay its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit conducted at
the end of the Corporation's fiscal year in the ordinary course of
business, and the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities
exchange and securities association.
ARTICLE VIII
INDEMNIFICATION
A. Indemnification by Corporation. The Corporation agrees to
indemnify, to the full extent permitted by law, each holder of
Registrable Securities, its officers, directors, employees and
agents and each Person who controls such holder (within the meaning
of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue
statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained
in any information furnished in writing to the Corporation by such
holder expressly for use therein or by such holder's failure to
deliver a copy of the Registration Statement or Prospectus after
the Corporation has furnished such holder with a sufficient number
of copies of the same.
B. Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of
Registrable Securities is participating, each such holder will
furnish to the Corporation in writing such information and
affidavits as the Corporation reasonably requests for use in
connection with any Registration Statement or Prospectus and agrees
to indemnify, to the full extent permitted by law, the Corporation,
its directors, officers, employees and agents and each Person who
controls the Corporation (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact
required to be stated in the Registration Statement or Prospectus
or preliminary Prospectus or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that
such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such holder to the
Corporation specifically for inclusion in such Registration
Statement or Prospectus. In no event shall the liability of any
selling holder of Registrable Securities hereunder be greater in
amount than the dollar amount of the proceeds received by such
holder upon the sale of the Registrable Securities giving rise to
such indemnification obligation.
C. Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder shall (i) give prompt notice
to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) permit such indemnifying party to
assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any
Person entitled to indemnification hereunder shall have the right
to employ separate counsel and to participate in the defense of
such claim, but the reasonable fees and expenses of such counsel
shall be at the expense of such Person unless (a) the indemnifying
party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person, or
(c) in the reasonable judgment of any such Person and the
indemnifying party, based upon advice of their respective counsel,
a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in which case, if
the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such Person). If
such defense is not assumed by the indemnifying party, the
indemnifying party shall not be subject to any liability for any
settlement made without its consent (but such consent will not be
unreasonably withheld). No indemnifying party shall be required to
consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest
may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees
and expenses of such additional counsel or counsels.
D. Contribution. If the indemnification provided for in this
Article VIII is unavailable or insufficient to hold harmless an
indemnified party under Paragraphs A or B immediately preceding,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in said Paragraphs A or
B, in such proportion as is appropriate to reflect the relative
fault of the Corporation, on the one hand, and the participating
holders of Registrable Securities, on the other, in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, 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
Corporation on the one hand or such holders on the other, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The parties agree that it would not be just and equitable
if contributions pursuant to this Paragraph D were to be determined
by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to
in the prior provisions of this Paragraph D. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the prior provisions of this Paragraph
D shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending against any action or claim that is the subject of
this Paragraph D. Notwithstanding the provisions of this Paragraph
D, no participating holder of Registrable Securities shall be
required to contribute any amount in excess of the amount by which
the net proceeds received from the sale of its shares exceeds the
amount of any damages that it has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. For purposes of this Paragraph D no person guilty
of fraudulent misrepresentation (within the meaning of Section V(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
ARTICLE IX
RULE 144
The Corporation covenants that it shall file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC
thereunder, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC.
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No holder of Registrable Securities may participate in any
underwritten registration under Article IV hereof unless such
holder (i) agrees to sell such holder's securities on the basis and
pursuant to the terms provided in any underwriting approved by the
Corporation or the Persons entitled to approve such arrangements
and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
ARTICLE XI
MISCELLANEOUS
A. Remedies. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, shall be entitled
to specific performance of its rights under this Agreement. The
Corporation agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
B. Notices. All notices, requests or instructions hereunder
shall be in writing and delivered personally or sent by registered
or certified mail, postage prepaid, as follows:
(1) if to the Corporation:
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Bachner, Tally, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
(2) if to the Purchaser:
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Krugman, Xxxxxxxx & Xxxxxxxx
Park 00-Xxxx Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000-0000
Any of the above addresses may be changed at any time by notice
given as provided above; provided, however, that any such notice of
change of address shall be effective only upon receipt.
C. Entire Agreement. This Agreement and the documents
referred to herein contain the entire agreement of the parties
hereto with respect to the transactions contemplated hereby, and
supersede all prior understandings, arrangements, and agreements
with respect to the subject matter hereof. No modification hereof
shall be effective unless in writing and signed by the party
against Which it is sought to be enforced.
D. Further Action. Each of the parties hereto shall use such
party's best efforts to take such actions as may be necessary or
reasonably requested by the other party hereto to carry out and
consummate the transactions contemplated by this Agreement.
E. Successors and Assigns. The registration rights granted
to the Purchaser under Article III and under Article IV may be
transferred to a transferee who acquires any Transaction Shares or
the Warrants, or any of them, or the Purchaser's rights under the
Option Agreement, which transfer shall be effective when the
Corporation is given written notice by the transferor at the time
of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under
Article III and IV are being assigned; provided, however, that the
rights granted hereunder shall not inure to the benefit of any
subsequent holder of Registrable Securities who purchased such
Registrable Securities in a registered public offering or pursuant
to Rule 144 promulgated under the Securities Act.
F. Notice of Shares. All references herein to numbers of
shares of Registrable Securities shall be subject to appropriate
adjustment for stock splits, stock dividends and recapitalizations
of the Corporation.
G. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
applicable in the case of agreements made and to be performed
entirely within such State.
H. Captions. The captions appearing herein are for the
convenience of the parties only and shall not be construed to
affect the meaning of the provisions of this Agreement.
I. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but
all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ATTEST: SUPER VISION INTERNATIONAL, INC.
s/Xxxxxxxx X. Xxxx
---------------------- By s/Xxxxx Kingstone
------------------------------
ATTEST: HAYWARD INDUSTRIES, INC.
s/Reuven Har-Even
----------------------- By s/Xxxxxxx X. Xxxxxx
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