EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is entered into as
of October 11, 2002, by and among XxxxXxxx.xxx, Inc., a Delaware corporation
(the "COMPANY"), and Delta Computec Inc., a New York Corporation, and any
successors and permitted assigns (the "HOLDERS"). In consideration of the mutual
promises herein contained, and other consideration, the receipt and adequacy of
which hereby is acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "COMMON STOCK" means the common stock, par value $.0001
per share, of the Company.
1.2 "DEMAND" means a written request to the Company signed by
Holders of 25% of the outstanding Registrable Securities which can be made at
any time after ninety (90) days after the closing under the Asset Purchase
Agreement (as defined below).
1.3 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect at that time.
1.4 "PREFERRED SHARES" shall mean those certain shares of
Series D Redeemable, Convertible Preferred Stock of the Company convertible into
a maximum aggregate of 1,000,000 shares of Common Stock of the Company issued or
to be issued to Delta Computec Inc. pursuant to the Asset Purchase Agreement by
and among Delta Computec Inc., NQL Inc., and the Company dated as of May 31,
2002, as approved pursuant to that certain Order of the United States Bankruptcy
Court for the District of New Jersey dated August 7, 2002 (the "Order"; together
with the Asset Purchase Agreement, the "ASSET PURCHASE AGREEMENT").
1.5 The terms "REGISTER," "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act (as defined below), and the
declaration or ordering of the effectiveness of such registration statement.
1.6 "REGISTRABLE SECURITIES" means (i) the shares of Common
Stock issuable or issued upon conversion of the Preferred Shares (the shares of
Common Stock included in the definition of "Registrable Securities" means those
shares of Common Stock that the Holders may acquire upon conversion of the
Preferred Shares), and (ii) any other shares of the Common Stock issued as (or
issuable upon or the exercise of any right or other security which is issued as)
a dividend or other distribution with respect to or in exchange for or
replacement of the Preferred Shares, or the Common Stock issued upon conversion
of the Preferred Shares, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which a Holder's registration
rights under this Agreement are not assigned; provided, however, that
Registrable Securities shall only be treated as Registrable Securities if and so
long as, they have not been (A) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction or (B)
sold, in the
opinion of counsel to the Company, in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
thereto are removed upon the consummation of such sale.
1.7 "REGISTRATION EXPENSES" shall mean all expenses (excluding
underwriting discounts, selling commissions, and fees and expenses of counsel
for the Holders) incurred in connection with a registration under Section 2
hereof, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and accountants for the
Company (including expenses of special audits or "cold comfort" letters or
opinions) and blue sky fees and expenses.
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder, all as
the same shall be in effect at the time.
1.9 "SEC" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
2. Demand Registration.
2.1 Request for Demand Registration. At any time after ninety
(90) days after the closing (as defined in the Asset Purchase Agreement),
Holders of at least 25% of the outstanding Registrable Securities (the "DEMAND
HOLDERS") shall have the right to make a Demand to the Company that it register
for resale all (but not less than all) of such Demand Holders' Registrable
Securities. Upon receiving a Demand, the Company shall provide to each other
Holder the right to include in the registration all (but not less than all) of
each other Holder's Registrable Securities. Collectively, the Demand Holders and
such other Holders who elect to participate in the registration are referred to
as the "SELLING DEMAND HOLDERS."
2.2 Form of Registration Statement. On or before the thirtieth
(30th) day following a Demand, the Company shall initiate preparation of a
registration statement to file with the SEC a registration statement under the
Securities Act covering the resale of the number of Registrable Securities then
issuable to the Selling Demand Holders on exercise of the Preferred Stock or
previously issued to the Selling Demand Holders and not covered by a
registration statement. In addition, the Company may elect to register for
resale shares of Common Stock held by other security holders of the Company, so
long as (i) the Registrable Securities of the Selling Holders to be registered
will not be reduced thereby; (ii) if such registration is an underwritten
offering, such other security holders agree in writing to sell the Common Stock
on the same terms and conditions as apply to the Registrable Securities being
sold; and (iii) the Company will be responsible for any and all costs (including
reasonable attorneys' fees) incurred by the Selling Demand Holders arising out
of the registration of such other security holder's Common Stock.
2.3 Effecting the Registration Statement. The Company shall
use its commercially reasonable efforts to cause the registration statement to
become effective as soon as possible following the filing thereof and shall use
its commercially reasonable efforts to keep the registration statement in effect
and maintain compliance with all securities laws until registration is no longer
2
required because the Registrable Securities are eligible for resale pursuant to
Rule 144 of the Securities Act in any three (3) month period (the "REGISTRATION
PERIOD").
2.4 Termination of Demand Rights. Upon the declaration by the
SEC of the effectiveness of a registration statement with respect to a Demand,
the right of the non-selling Holders of the Registrable Securities to make a
Demand pursuant to this Section 2 shall terminate and the Company shall have no
further obligation under this Section 2 to file any additional registration
statements on Demand, unless the Company breaches its obligations under Sections
2.2, 2.3 and 4.2 (b), (c), (d), (e) and (f).
2.5 Delay due to Underwritten Offering.If after receiving a
Demand the Company is at any time otherwise registering its securities pursuant
to an underwritten public offering and in the good faith judgment of the
managing underwriter, the registration of the Registrable Securities pursuant to
the Demand or the resale of the Registrable Securities pursuant thereto would
interfere with the Company's successful marketing of its securities, the Company
may delay the registration of the Registrable Securities pursuant to the Demand
or any resale of such Registrable Securities for a period of up to ninety (90)
days.
2.6 Underwritten Offering. If any registration under Section 2
of this Agreement is an underwritten offering, the underwriter(s) that will
administer the offering will be selected by the Company.
3. Piggyback Registration.
3.1 Notice. If at any time prior to the expiration of the
Registration Period, (i) the Company shall determine to register any of its
equity securities, either for its own account or for the account of a security
holder or holders, other than a registration relating solely to employee benefit
plans or a registration relating solely to a Rule 145 transaction or other
merger transaction or a registration on any registration form which does not
permit secondary sales of Common Stock or does not include substantially the
same information as would be required to be included in a registration statement
covering the resale of Registrable Securities and (ii) registration statements
covering the resale of all of the Registrable Securities are not then effective
and available for sales thereof, the Company will:
(a) promptly give the Holders written notice thereof;
(b) include in such registration, and in any
underwriting involved therein, all of the Registrable Securities
specified in a written request or requests made by the Holders within
thirty (30) days after receipt of the written notice from the Company
described in clause (a) above, except as set forth in Section 3.2
below. Such written request or requests shall specify all of the
Holders' Registrable Securities; provided, however, the aggregate
amount of Registrable Securities specified in such written request
shall not be less than one-third of the Registrable Securities; and
3
(c) use its commercially reasonable efforts to keep
the registration statement in effect and maintain compliance with all
securities laws for the Registration Period.
3.2 Underwriting. The right of the Holders to registration
pursuant to this Section 3 shall be conditioned upon their participation in any
underwriting and the inclusion of their Registrable Securities in such
underwriting to the extent provided herein. If the Holders wish to include
Registrable Securities in the registration and underwriting, if any, the Holders
shall (together with the Company and the other stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with an underwriter(s) selected by the Company. Notwithstanding
any other provision of this Section 3, if the underwriter(s) determines that
marketing factors require a limitation on the number of shares to be
underwritten, the underwriter may exclude from such registration and
underwriting up to all of the Registrable Securities which would otherwise be
underwritten pursuant hereto. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting by persons
other than the Company shall be allocated among the Holders as to their
Registrable Securities and among all other stockholders in proportion, as nearly
as practicable, to the respective amounts of securities which they had requested
to be included in such registration at the time of filing the registration
statement. If the Holders or other stockholder disapproves of the terms of any
such underwriting, the Holders or other stockholder may elect to withdraw
therefrom by written notice to the Company and the underwriter(s). Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
4. Expenses of Registration; Registration Procedures.
4.1 Expenses. All Registration Expenses incurred in connection
with any registration, qualification or compliance pursuant to this Agreement
shall be borne by the Company.
4.2 Procedures. If and whenever the Company effects the
registration of any Registrable Securities as provided herein, the Company
shall, subject to the limitations provided herein:
(a) if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to the
selling Holders and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement,
prospectus, any amendment or supplement thereto as proposed to be filed;
(b) prepare and file with the SEC such amendments and
supplements to any registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the Holders thereof set
forth in such registration statement;
4
(c) furnish to the Holders of Registrable Securities
covered by such registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, and such other documents, as the Holders may reasonably
request;
(d) use its reasonable efforts to register or qualify
all Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions as
the Holders shall reasonably request (the "BLUE SKY LAWS"), to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and take any other action which may be reasonably
necessary or advisable to enable the Holders to consummate the disposition in
such jurisdictions of the securities owned by the Holders, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this Section 4.2(d) be obligated to be so qualified or
to consent to general service of process in any such jurisdiction;
(e) use its reasonable efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other United States Federal or state governmental
agencies or authorities as may be necessary to enable the Holders thereof to
consummate the disposition of such Registrable Securities;
(f) notify the Holders of Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
at the request of the Holders, prepare and furnish to the Holders a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(g) after the filing of the registration statement,
promptly notify the Holders of any stop order issued or, to its knowledge,
threatened by the SEC and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered;
(h) provide and cause to be maintained a transfer
agent for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(i) use its reasonable efforts to list all
Registrable Securities covered by such registration statement on any national or
regional securities exchange or quoting service on which any of the Common Stock
is then listed or quoted, including the "pink sheets" or any over-the-counter
trading activity;
5
(j) the Company will make reasonably available for
inspection by the Holders requesting registration of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by the
Holders or underwriter (collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records which the
Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. The Holders agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company or its
affiliates unless and until such is made generally available to the public;
(k) the Company will otherwise use its reasonable
efforts to comply with all applicable rules and regulations of the SEC; and
(l) upon the transfer of any Registrable Securities
by the Holders in connection with a registration hereunder, the Company shall
furnish unlegended certificates representing ownership of the Registrable
Securities in such denominations as shall be requested by the Holders or the
underwriters.
Notwithstanding anything set forth in this Agreement, the
Company shall have the right once per every twelve (12) consecutive months to
delay the filing of a registration statement pursuant to this Agreement and to
suspend the effectiveness of any such Registration Statement for a reasonable
period of time (not exceeding ninety (90) days) if the Company furnishes to the
selling Holders a certificate signed by the Chairman of the Board or the
President of the Company stating that the Company has determined in good faith
that effecting such registration or offering at such time would adversely affect
a material financing, acquisition or disposition of assets, distribution rights
or stock, merger or other comparable transaction, or would require the Company
to make public disclosure of information the public disclosure of which would
have a material adverse effect upon the Company.
5. Indemnification.
5.1 Company. The Company shall indemnify a Holder and the
directors, officers, employees, agents and representatives of the Holder, and
each person, if any, who controls any Holder within the meaning of Section 15 of
the Securities Act, if Registrable Securities held by the Holder are included in
the securities with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue
6
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement) incident to any
such registration, qualification or compliance, or based on 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, or any violation by
the Company of the Securities Act or the Blue Sky Laws including any rule or
regulation thereunder applicable to the Company relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse the Holder and such directors, officers,
employees, agents, representatives or control persons for any attorney's fees,
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement (or alleged untrue statement) or omission (or alleged
omission) contained in a writing signed by that Holder and furnished to the
Company by that Holder and stated to be specifically for use in preparing such
prospectus, offering circular or other document incident to such registration,
qualification or compliance in that writing.
5.2 Holder. Each Holder will, if Registrable Securities or
other securities held by such Holder are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers, employees, agents and representatives
and each underwriter, if any, of the Company' securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of Section 15 of the Securities Act against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, 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, and will reimburse the Company and such directors,
officers, agents, representatives, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document incident to such
registration, qualification or compliance and contained in a writing signed by
that Holder and furnished to the Company by that Holder and stated to be
specifically for use in preparing such prospectus, offering circular or other
document incident to such registration, qualification or compliance in that
writing. In no event shall the aggregate liability of such Holder for
indemnification under this Section 5 exceed the proceeds received by such Holder
from the sale of shares in such offering.
5.3 Procedures. Each party entitled to indemnification under
this Section 5 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or any litigation
resulting therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that
7
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement, except
to the extent that the Indemnified Party is prejudiced thereby. Each Indemnified
Party, at the Indemnifying Party's cost, shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom. An Indemnified Party
shall have the right to retain its own counsel, with the fees and expenses to be
paid by the Indemnifying Party, if representation of such Indemnified Party by
the counsel retained by the Indemnifying Party would be inappropriate due to
actual or potential differing interests between such Indemnified Party and any
other party represented by such counsel in such proceeding, provided that in no
event shall the Indemnifying Party be required to pay the fees and expenses of
more than one such separate counsel for all Indemnified Parties. The
Indemnifying Party may settle any such claim without the prior written consent
of the Indemnified Party, but only if the Indemnifying Party pays all amounts
arising out of such settlement concurrently with the effectiveness of the
settlement and obtains, as a condition to any settlement or other resolution, a
complete release of such Indemnified Party.
5.4 Equitable Relief. If the indemnification provided for in
this Section 5 is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any losses, claims, damages or liabilities
referred to herein, the Indemnifying Party, in lieu of indemnifying such
Indemnified Party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such Indemnified Party as the result
of such loss, claim, damage or liability 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 allegation(s) that
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 a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the parties' relevant
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, that in no event shall any contribution by
any Holder hereunder exceed the proceeds from the sale of shares in the offering
received by such Holder.
5.5 Survival. The obligations of the Company and the Holders
under this Section 5 shall survive the completion of any offering of Registrable
Securities in a registration statement and the termination of this Agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the prior written consent of each Indemnified Party (which consent
shall not be unreasonably withheld), consent to the entry of any judgment or
enter into any settlement. Unless waived by the Indemnified Party, all judgments
and settlements must 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.
6. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
8
6.1 Public Information. Make and keep public information
available as those terms are understood and defined in Rule 144 under the
Securities Act;
6.2 Filings. File with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act;
6.3 Compliance. So long as a Holder owns any Registrable
Securities, furnish to such Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of Rule 144,
and of the Securities Act and the Exchange Act;
6.4 Removal of Legends. The Company will, at the written
request of a Holder, upon receipt from such Holder of a certificate certifying
(i) that such Holder has held its Registrable Securities for the applicable
holding period under Rule 144 with respect to the Holder's possession of such
Registrable Securities, as in effect on the date of such certificate, (ii) that
such Holder has not been an affiliate (as defined in Rule 144) of the Company
during any of the ninety (90) preceding days, and (iii) as to such other matters
as may be appropriate in accordance with Rule 144, remove from the stock
certificates representing such Registrable Securities that portion of any
restrictive legend which relates to the registration provisions of the
Securities Act; and
6.5 Additional Information. The Company acknowledges and
agrees that the purposes of the requirements contained in this Section 6 are to
enable the Holders to comply with the current public information requirement
contained in Paragraph (c) of Rule 144 under the Securities Act should the
Holders ever wish to dispose of any of the securities of the Company acquired by
it without registration under the Securities Act in reliance upon Rule 144 (or
any other similar exemptive provision). The Company shall take such other
measures, and file such other information, documents and reports, as shall
hereafter be required by the SEC as a condition to the availability of Rule 144
under the Securities Act (or any similar provision hereafter in effect).
7. Termination of Rights. The provisions of this Agreement, except the
provisions in Sections 5 and 6 of this Agreement, shall terminate on the date on
which all Registrable Securities held by the Holders (and any affiliate of the
Holders with whom the Holders must aggregate its shares under Rule 144) may be
sold pursuant to Rule 144 in any three (3) month period.
8. Miscellaneous.
8.1 Transfer or Assignment of Registration Rights. The rights
of a Holder shall be assigned automatically to any transferee of the Preferred
Shares or Registrable Securities from such Holder as long as: (i) the Company
is, within a reasonable period of time following such transfer, furnished with
written notice of the name and address of such transferee and (ii) the
transferee agrees in writing with the Company to be bound by all of the
provisions hereof.
8.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Texas as applied to agreements entered
into solely between residents of and to be performed entirely within such state.
9
8.3 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.5 Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
first-class mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to a Holder, at the address of such Holder on the
books of the Company, or at such other address as such Holder shall have
furnished to the Company in writing, or (b) if to the Company, at the address of
its principal offices.
8.6 Expenses. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, expenses
and necessary disbursements in addition to any other relief to which such party
may be entitled.
8.7 Amendments and Waivers. Any term of this Agreement may be
amended with the written consent of the Board of Directors of the Company and
the Holders of at least a majority of the outstanding Registrable Securities.
Any amendment or waiver effected in accordance with this Section 8.7 shall be
binding upon the Holders, each transferee of the Registrable Securities, each
future holder of all such Registrable Securities, and the Company.
8.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, portions of such provisions,
or such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.9 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party to this Agreement, upon any breach
or default of any other party, shall impair any such right, power or remedy of
such non-breaching party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to the Holders, shall be
cumulative and not alternative.
8.10 Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof and any other written or oral agreements
between the parties hereto are expressly canceled.
8.11 Aggregation of Stock. All Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated for the purposes
of determining the availability of any right under this Agreement.
[Signature Page to Follow]
10
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of October 11, 2002.
COMPANY:
XXXXXXXX.XXX, INC., a Delaware company
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Chief Financial Officer
------------------------------
HOLDER:
DELTA COMPUTEC INC., a New York company
By: /s/ XXXX XXXXXX
--------------------------------------
Name: Xxxx XxXxxx
--------------------------------
Title: President
------------------------------
11
