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EXHIBIT 4.10
REGISTRATION RIGHTS AGREEMENT
DATED DECEMBER 1, 1996
BY AND BETWEEN
ELECTRONIC DESIGNS, INC.
AND
CAMERON ASSOCIATES
REGISTRATION RIGHTS AGREEMENT, dated as of December 1, 1996, by and
between ELECTRONIC DESIGNS, INC., a Delaware corporation (the "Company"), and
CAMERON ASSOCIATES.
WHEREAS, as consideration for Cameron Associates agreeing to provide
its professional services to advise and direct the Company's Investor Relations
program, and to provide Cameron Associates with appropriate incentives in the
performance of its services, pursuant to that certain Warrant to Purchase Shares
of Common Stock, dated December 1, 1996, by and between the Company and Cameron
Associates, the Company issued a warrant to purchase up to Forty-Five Thousand
(45,000) shares of common stock, $.01 par value per share, of the Company (the
"Common Stock") exercisable at $3.875 per share, subject to certain vesting
conditions and expiring in three years (the "Warrant").
WHEREAS, the Company and Cameron Associates deem it to be in their
respective best interests to set forth the rights of Cameron Associates in
connection with public offerings and sales of the Common Stock.
Accordingly, the Company and Cameron Associates agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"OTHER SHARES" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
"PRIMARY SHARES" means at any time the authorized but unissued shares
of Common Stock or shares of Common Stock held by the Company in its treasury.
"REGISTRABLE SHARES" means at any time the shares of Common Stock held
by Cameron Associates which constitute Restricted Shares.
"RESTRICTED SHARES" means at any time the Common Stock of the Company
issued upon exercise of the Warrant and any Common Stock of the Company issued
as a dividend or other distribution with respect to, or in exchange or in
replacement of, the aforementioned Common Stock, which are held by Cameron
Associates and which have not previously been sold to the public pursuant to a
registration statement under the Securities Act or are able to be sold under
Rule 144(k).
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"TRANSFER" means any disposition of any Restricted Shares or of any
interest therein which would constitute a sale thereof within the meaning of the
Securities Act, other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
SECTION 2. PIGGYBACK REGISTRATION. If the Company at any time proposes
for any reason to register Primary Shares or Other Shares under the Securities
Act (other than on Form S-4 or Form S-8 promulgated under the Securities Act or
any successor forms thereto), it shall promptly give written notice to Cameron
Associates of its intention to register the Primary Shares or Other Shares at
least 20 business days prior to the anticipated filing date of the registration
statement relating thereto. Upon the written request, given within 10 business
days after delivery of any such notice by the Company, of Cameron Associates to
include in such registration Registrable Shares (which request shall specify the
number of Registrable Shares proposed to be included in such registration), the
Company shall use commercially reasonable efforts to cause all such Registrable
Shares to be included in such registration on the same terms and conditions as
the securities otherwise being sold in such registration; provided, however,
that:
(a) if any managing underwriter for the public offering
contemplated by such registration advises the Company in writing that, in such
firm's good faith opinion, the inclusion of any or all Registrable Shares or
Other Shares proposed to be included in such registration would adversely affect
the offering and sale (including pricing) of the Primary Shares proposed to be
registered by the Company, then the number of Primary Shares, Registrable Shares
and Other Shares proposed to be included in such registration shall be included
in the following order:
(i) first, the Primary Shares;
(ii) second, the Other Shares; and
(iii) third, the Registrable Shares.
(b) if at any time after giving written notice of its
intention to register any Primary Shares or Other Shares and prior to the
effective date of such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to Cameron Associates
and, thereupon, (i) in the case of a determination not to register, the Company
shall be relieved of its obligation to register any Registrable Shares in
connection with such registration and (ii) in the case of a determination to
delay such registration, the Company shall be permitted to delay registration of
any Registrable Shares requested to be included in such registration for the
same period as the delay in registering such other securities.
SECTION 3. PREPARATION AND FILING. If and whenever the Company is under
an obligation pursuant to the provisions of this Agreement to use commercially
reasonable efforts to effect the registration of any Registrable Shares under
the Securities Act, the Company shall, as expeditiously as practicable:
(a) use commercially reasonable efforts to cause a
registration statement that registers such Registrable Shares to become and
remain effective for a period of ninety (90) days or until all of such
Registrable Shares have been disposed of (if earlier);
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(b) furnish to Cameron Associates such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as Cameron
Associates may reasonably request in order to facilitate the disposition of the
Registrable Shares;
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least a period of ninety (90) days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of such Registrable Shares;
(d) use reasonable commercial efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as shall be reasonably appropriate for the distribution of the
securities covered by the registration statement registering such Registrable
Shares; provided, however, that the Company will not be required to register or
qualify generally to do business, subject itself to general taxation or consent
to general service of process in any jurisdiction where it would not otherwise
be required so to do but for this paragraph (d);
SECTION 4. EXPENSES. All expenses incurred by the Company in complying
with Section 3, including, without limitation, all registration and filing fees,
fees and expenses of complying with securities and blue sky laws, printing
expenses, and fees and expenses of the Company's counsel and accountants shall
be paid by the Company; provided, however:
(a) All underwriting discounts and selling commissions and all
stock transfer taxes applicable to the Registrable Shares shall be borne by
Cameron Associates; and
(b) If any such cost is attributable solely to Cameron
Associates and does not constitute a normal cost or expense of such
registration, such cost or expense shall be borne by Cameron Associates.
SECTION 5. INDEMNIFICATION.
(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless Cameron Associates, each underwriter, broker or any
other person acting on behalf of Cameron Associates and each other person, if
any, who controls any of the foregoing persons within the meaning of the
Securities Act against any losses, claims, damages or liabilities, joint or
several, (or actions in respect thereof) to which any of the foregoing persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Company of the Securities Act or state securities or
blue sky laws applicable to the Company and relating to action or inaction
required of the Company in connection with such registration or
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qualification under such state securities or blue sky laws; and shall reimburse
Cameron Associates, such underwriter, such broker or such other person acting on
behalf of Cameron Associates and each such controlling person for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document incident to registration or
qualification of any Registrable Shares in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by or on behalf of Cameron Associates or underwriter specifically for use in the
preparation thereof and provided, further, however, that, as to any underwriter
or any person controlling any underwriter, this indemnity does not apply to any
losses, claims, damages or liabilities arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Shares as required by the Securities Act and such untrue statement
or omission had been corrected in such prospectus.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, Cameron Associates shall
indemnify and hold harmless (in the same manner and to the same extent as set
forth in the preceding paragraph of this Section) the Company, each director of
the Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of the
Company and each person who controls any of the foregoing persons within the
meaning of the Securities Act with respect to any statement or omission from
such registration statement, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or qualification of
any Registrable Shares, if (other than with respect to Cameron Associates'
indemnification of an underwriter) such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company or such underwriter through an instrument duly executed by or on behalf
of such seller specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; provided, however, that the maximum amount of liability
in respect of such indemnification shall be limited to an amount equal to the
net proceeds actually received by Cameron Associates from the sale of
Registrable Shares effected pursuant to such registration; and provided,
further, however, that, as to any underwriter or any person controlling any
underwriter, this indemnity does not apply to any losses, claims, damages or
liabilities arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary prospectus if a
copy of a prospectus was not sent or given by or on behalf of an underwriter to
such person asserting such loss, claim, damage, liability or action at or prior
to the written confirmation of the sale of the Registrable Shares as required by
the Securities Act and such untrue statement or omission had been corrected in
such prospectus.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other
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indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the latter in connection with
the defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees and
expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this
Section.
(d) If the indemnification provided for in this Section is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage or liability as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party 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 indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
SECTION 6. STANDBACK. Cameron Associates hereby agrees that it shall
not sell or otherwise transfer or dispose of any Registrable Shares or any other
securities of the Company for the period of time specified by an underwriter of
securities of the Company (other than to donees who agree to be similarly bound)
not to exceed one hundred eighty (180) days after the effective date of any
future registration statement filed by the Company in connection with any
underwritten public offering of the Company's Common Stock. In order to enforce
the foregoing covenant, the Company may impose legends and stock transfer
instructions with respect to the Registrable Securities held by Cameron
Associates.
SECTION 7. INFORMATION BY CAMERON ASSOCIATES. Cameron Associates shall
furnish to the Company such written information regarding Cameron Associates and
the distribution proposed by Cameron Associates as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 8. TERMINATION. This Agreement shall terminate and be of no
further force or effect at the earlier of (i) that time when Cameron Associates
ceases to hold the Warrant or any Registrable Shares, or (ii) December 1, 2001.
SECTION 9. SUCCESSORS. This Agreement shall bind and inure to the
benefit of the Company and Cameron Associates and, to the extent that either
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party undergoes a merger, consolidation or change in business form, their
respective successors.
SECTION 10. ASSIGNMENT. The rights granted under this Agreement are
unique to the Company and Cameron Associates and are neither assignable nor
transferable under any circumstances or at any time.
SECTION 11. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect hereto.
SECTION 12. NOTICES. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered, or if sent by nationally
recognized overnight courier or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Company:
Electronic Designs, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, P.C.;
if to Cameron Associates:
Cameron Associates
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xx. Xxxxxx X'Xxxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery, (ii) in the case of nationally
recognized overnight courier, on the next business day after the date when sent,
and (iii) in the case of mailing, on the third business day following that on
which the piece of mail containing such communication is posted.
SECTION 13. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may only be modified or amended by an instrument
signed by the Company and Cameron Associates.
SECTION 14. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference purposes only and
shall not be deemed to be a part of this Agreement.
SECTION 15. SEVERABILITY. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any provision of this Agreement
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would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to principles governing conflicts of laws.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement on the date first above written.
THE COMPANY:
ELECTRONIC DESIGNS, INC.
By:________________________________________
Name (Print):
Title:
CAMERON ASSOCIATES
By:________________________________________
Name (Print):
Title:
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