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EXHIBIT 4.4
SOLIGEN TECHNOLOGIES, INC.
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (the "Agreement") is made as of April 24,
1998, by and among Soligen Technologies, Inc., a Wyoming corporation (the
"Company"), and Koyah Leverage Partners, L.P., a Delaware limited partnership,
and Koyah Partners, L.P., a Delaware limited partnership, (Koyah Leverage
Partners, L.P. and Koyah Partners, L.P. are collectively referred to herein as
the "Investor").
RECITALS
A. The Investor is purchasing up to 3,000 shares of the Company's
Series A Convertible Preferred Stock (the "Series A Stock") pursuant to that
certain Series A Convertible Preferred Stock Purchase Agreement, dated as of the
date hereof, between the Company and the Investor (the "Series A Purchase
Agreement").
B. It is a condition to the obligations of the Investor under the
Series A Purchase Agreement that this Agreement be executed by the parties
hereto, and the parties are willing to execute, and to be bound by the
provisions of, this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) "Convertible Securities" shall mean securities of the Company
convertible into or exchangeable for Common Stock of the Company or into other
securities that are convertible into or exchangeable for Common Stock.
(c) "Holder" shall mean any holder of outstanding Registrable Securities
which have not been sold to the public, but only if such holder is the Investor
or an assignee or transferee of registration rights as permitted by Section 10.
(d) The terms "Register", "Registered", and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
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(e) "Registrable Securities" shall mean all Common Stock not previously
sold to the public and issued or issuable upon conversion or exercise of any of
the Company's Convertible Securities purchased by or issued to the Investor,
including Common Stock issued pursuant to stock splits, stock dividends and
similar distributions; provided, however, that shares of Common Stock or other
securities shall cease to be treated as Registrable Securities at such time as
they (i) have been sold pursuant to an effective Registration Statement under
the Securities Act or (ii) have otherwise been sold or transferred to or through
a broker, dealer or underwriter in a public distribution or a public securities
transaction.
(f) "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 3 of this Agreement, including, without
limitation, all federal and state registration, qualification, and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such Registration.
(g) "Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(h) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement.
2. RIGHT OF FIRST REFUSAL
(a) The Company hereby grants to the Investor the right of first refusal
to purchase up to its Pro Rata Share of any New Securities (as defined below)
that the Company may, from time to time, propose to sell and issue. The Investor
may purchase New Securities on the same terms and at the same price at which the
Company proposes to sell the New Securities. The "Pro Rata Share" of the
Investor, for purposes of this right of first refusal, is the ratio of (a) the
total number of shares of Common Stock held by the Investor (including any
shares of Common Stock into which shares of Convertible Securities held by the
Investor are convertible) to (b) the total number of shares of Common Stock
outstanding (including any shares of Common Stock into which outstanding shares
of Convertible Securities are convertible). Each Investor shall have the right
of over-allotment such that if any Investor fails to exercise its rights
hereunder to purchase its full portion of its Pro Rata Share of New Securities,
the other Investor may, within five (5) days from the date such non-purchasing
Investor fails to purchase its full Pro Rata Share hereunder, purchase all or
any portion of the non-purchasing Investor's Pro Rata Share of New Securities
which is not purchased.
(b) "New Securities" shall mean any capital stock of the Company,
whether authorized or not, and any rights, options, or warrants to purchase said
capital stock, and securities of any type whatsoever that are, or may become,
convertible into said capital stock; provided, that "New Securities" shall not
include (a) securities issuable upon conversion of the Convertible Securities,
(b) securities issued pursuant to the acquisition of another corporation by the
Company by merger, purchase of all or substantially all of the assets, or other
reorganization, if approved by the Company's Board of Directors, (c) shares
issued or issuable to employees, directors or consultants pursuant to the
Company's 1993 Stock Option Plan, as amended,
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(d) shares issued without consideration pursuant to a stock dividend, stock
split, or similar transaction, (e) shares issued pursuant to the exercise of
warrants and options outstanding as of the date of this Agreement, and (f)
securities, options or warrants issued to employees, directors or consultants as
compensation for services rendered to the Company (other than in connection with
an equity or debt financing) and approved by the Company's Board of Directors.
(c) If the Company proposes to undertake an issuance of New Securities,
it shall give to the Investor written notice (the "Notice") of its intention,
describing the type of New Securities, the price, the terms upon which the
Company proposes to issue the same, the number of shares that the Company
proposes to issue and the number of shares that the Investor is entitled to
purchase, and a statement that the Investor shall have twenty (20) days to
respond to such Notice. The Investor shall have twenty (20) days from the date
of receipt of the Notice to agree to purchase any or all of its Pro Rata Share
of the New Securities for the price and upon the terms specified in the Notice
by giving written notice to the Company and stating therein the quantity of New
Securities to be purchased and forwarding payment for such New Securities to the
Company if immediate payment is required by such terms.
(d) If the Investor fails to exercise in full the right of first refusal
within said twenty (20) day period and after the expiration of the 5-day period
for the exercise of the over-allotment provisions of this Section 2, the Company
shall have ninety (90) days thereafter to sell or enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within thirty (30) days from the date of said agreement) to sell the
New Securities respecting which the Investor's rights were not exercised, at a
price not less than and upon general terms no more favorable to the purchaser
thereof than specified in the Notice. If the Company has not sold the New
Securities within said ninety (90) day period (or sold and issued New Securities
in accordance with the foregoing within thirty (30) days from the date of said
agreement), the right of first refusal provided hereunder shall be revived and
the Company shall not thereafter issue or sell any New Securities without first
offering such securities to the Investor in the manner provided above.
(e) The covenants of the Company set forth in this Section 2 shall be
terminated and be of no further force or effect immediately prior to the closing
of the first public offering of the Common Stock of the Company effected
pursuant to a Registration Statement filed with, and declared effective by, the
Commission under the Securities Act, that results in gross offering proceeds of
at least Ten Million Dollars ($10,000,000) at a per share price of at least One
Dollar ($1.00) subject to proportional adjustment for stock splits, dividends,
consolidations, recapitalizations, and similar events.
3. PIGGYBACK REGISTRATION
(a) Notice of Piggyback Registration and Inclusion of Registrable
Securities
Subject to the terms of this Agreement, if the Company proposes to
Register any of its Common Stock for its own account or the account of a
security holder or holders exercising demand Registration rights on a form that
would be suitable for a Registration involving solely Registrable Securities,
the Company will: (a) promptly give each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify
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such securities under the applicable Blue Sky or other state securities laws) at
least thirty (30) days prior to the proposed filing date of a Registration
Statement and offer such Holder the opportunity to Register all or a portion of
its Registrable Securities in such offering and (b) include in such Registration
(and any related qualification under Blue Sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within twenty (20) days
after delivery of such written notice from the Company.
(b) Underwriting in Piggyback Registration
(i) Notice of Underwriting in Piggyback Registration
If the Registration of which the Company gives notice is for a Registered
public offering involving an underwriting, the Company shall so advise the
Holders as a part of the written notice given pursuant to Subsection 3(a). In
such event, the right of any Holder to Registration shall be conditioned upon
such underwriting and the inclusion of such Holder's Registrable Securities in
such underwriting to the extent provided in this Section 3. All Holders
proposing to distribute their Registrable Securities through such underwriting
shall (together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter's representative for such offering.
(ii) Marketing Limitation in Piggyback Registration
If the underwriter's representative advises the Company and the Holders
seeking Registration of Registrable Securities pursuant to Section 3 in writing
that market factors (including, without limitation, the aggregate number of
shares of Common Stock requested to be Registered, the general condition of the
market, and the status of the persons proposing to sell securities pursuant to
the Registration) require a limitation of the number of shares to be
underwritten, then the underwriter's representative (subject to the allocation
priority set forth in Subsection 3(b)(iii)) may limit the number of shares of
Registrable Securities to be included in such Registration and underwriting to
not less than twenty-five percent (25%) of the securities included in such
Registration (based on aggregate market values).
(iii) Allocation of Shares in Piggyback Registration
If the underwriter's representative limits the number of shares to be
included in a Registration pursuant to Subsection 3(b)(ii), the number of shares
to be included in such Registration shall be allocated (subject to Section 3) in
the following manner: The shares (other than Registrable Securities) held by
officers or directors of the Company shall be excluded from such Registration
and underwriting to the extent required by such limitation. If a limitation of
the number of shares is still required after such exclusion, the number of
shares that may be included in the Registration and underwriting by selling
shareholders shall be allocated among all other holders thereof, in proportion,
as nearly as practicable, to the respective amounts of securities (including
Registrable Securities) which such holders would otherwise be entitled to
include in such Registration. No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 3 shall be included in
the Registration Statement.
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(iv) Withdrawal in Piggyback Registration
If any Holder disapproves of the terms of any such underwriting, such
person may elect to withdraw therefrom by written notice to the Company and the
underwriter delivered prior to the effective date of the Registration Statement.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such Registration. If Registrable
Securities or other securities are so withdrawn from the Registration and the
number of shares of Registrable Securities to be included in such Registration
was previously reduced as a result of marketing factors, then the Company shall
offer to all persons who have retained the right to include Registrable
Securities or other securities in the Registration the right to include
additional Registrable Securities or other securities in the Registration in an
aggregate amount equal to the number of shares so withdrawn, with such shares to
be allocated among the persons requesting additional inclusion pro rata
according to the total amount of Registrable Securities or other securities
entitled to be included in such Registration owned by each such person or in
such other proportions as shall be mutually agreed by such selling stockholders.
4. EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with an aggregate of two
(2) Registrations pursuant to Section 3 shall be borne by the Company. All
Selling Expenses shall be borne by the holders of the securities Registered pro
rata on the basis of the number of shares Registered.
5. REGISTRATION PROCEDURES AND OBLIGATIONS
(a) Company's Obligations
Whenever required under this Agreement to effect the Registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(i) Prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its best efforts to cause
such Registration Statement to become effective, and, upon the request of the
holders of a majority of the securities Registered thereunder, keep such
Registration Statement effective for up to one hundred twenty (120) days;
provided, however, that (i) such 120-day period shall be extended for a period
of time equal to the period the Holder refrains from selling any securities
included in such Registration at the request of an underwriter of Common Stock
(or other securities) of the Company.
(ii) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(iii) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other
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documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(iv) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith, or as a
condition thereto, to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(v) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(vi) Notify each Holder 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 of 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 a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(vii) Cause all such Registrable Securities registered pursuant
hereto to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(viii) Provide a transfer agent and registrar for all Registrable
Securities Registered pursuant to such Registration Statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such Registration.
(b) Information Furnished by Holder
It shall be a condition precedent of the Company's obligations under this
Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder and
the distribution proposed by such Holder or Holders as the Company may
reasonably request.
6. TERMINATION OF RIGHTS
The rights of any particular Holder to cause the Company to Register
securities under Section 3 shall terminate with respect to such Holder on the
date on which all of such Holder's Registrable Securities can be sold without
volume restrictions under Rule 144 promulgated under the Securities Act ("Rule
144").
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7. INDEMNIFICATION
(a) Company's Indemnification of Holders
To the extent permitted by law, the Company will indemnify each Holder,
and each of its officers, directors, and partners, and each person, if any, who
controls such Holder within the meaning of the Securities Act, with respect to
which Registration, qualification or compliance of registrable securities has
been effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter, against all claims, losses, damages, or
liabilities (or actions in respect thereof) to the extent such claims, losses,
damages, or liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related Registration Statement) incident to any
such Registration, qualification, or compliance, or are 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, in light of
the circumstances under which they were made, or any violation (or alleged
violation) by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification,
or compliance; and the Company will reimburse each such Holder, underwriter, and
each person who controls any such Holder or underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action; provided, however, that the
indemnity contained in this Section 7 shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of the Company (which consent shall not
unreasonably be withheld); provided, further, 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 upon any untrue statement or
omission based upon written information furnished to the Company by such Holder
or persons on behalf of such Holder, underwriter, or controlling person and
stated to be for use in connection with the offering of securities of the
Company; provided, further, that this indemnity agreement with respect to a
preliminary prospectus shall not inure to the benefit of any Holder from whom
the person asserting any such losses, liabilities, claims, damages or expenses
purchased Registrable Securities, or any person controlling such Holder, if a
copy of the prospectus (as amended or supplemented at the time of sale) was not
sent or given by or on behalf of the Holder to such person and if the prospectus
(as so amended or supplemented) would have corrected the defect giving rise to
such loss, liability, claim, damage or expense.
(b) Holder's Indemnification of Company
To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which
Registration, qualification, or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such a Registration
Statement, each person who controls the Company or such underwriter within the
meaning of the Securities Act, and each other such Holder, each of its officers,
directors, and partners, and each person controlling such other Holder, against
all claims, losses, damages, and liabilities (or actions in respect thereof)
arising out of or based upon any untrue statement (or alleged untrue statement)
of a material fact contained in any such Registration Statement, prospectus,
offering
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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, in light of the circumstances under which
they were made, and will reimburse the Company, such Holders, such directors,
officers, partners, persons, underwriters or control persons for any legal and
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 in each case 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 in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use in connection with
the offering of securities of the Company; provided, however, that the indemnity
contained in this Section 7 shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld)
and provided, further, that each Holder's liability under this Section 7 shall
not exceed such Holder's proceeds from the offering of securities made in
connection with such Registration.
(c) Indemnification Procedure
Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof
and generally summarize such action. The indemnifying party shall have the right
to participate in and to assume the defense of such claim; provided, however,
that the indemnifying party shall be entitled to select counsel for the defense
of such claim with the approval of any parties entitled to indemnification,
which approval shall not be unreasonably withheld; provided further, however,
that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate 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. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party, to the extent so prejudiced, of any
liability to the indemnified party under this Section 7, but the omission so to
notify the indemnifying party will not relieve such party of any liability that
such party may have to any indemnified party otherwise other than under this
Section 7.
(d) Contribution
If the indemnification provided for in this Section 7 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or expense 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 that resulted in such loss, liability, claim damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the
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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 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.
8. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
With a view to making available to the Holders the benefits of Rule 144
and any other rule or regulation of the Commission that may at any time permit a
Holder to sell securities of the Company to the public without Registration, the
Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after ninety (90) days after
the effective date of the first Registration Statement filed by the Company for
the offering of its securities to the general public;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(c) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith on request (i) a written statement by the Company that it
has complied with the reporting requirements of Rule 144 (at any time after
ninety (90) days after the effective date of the first Registration Statement
filed by the Company), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the
Commission which permits the selling of any such securities without Registration
or pursuant to such form.
9. MARKET STAND-OFF
Each Holder hereby agrees that, if so requested by the Company and the
underwriter's representative (if any) in connection with the Company's initial
public offering, such Holder shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities or other securities of the Company without the prior
written consent of the Company and the underwriter's representative for such
period of time (not to exceed 180 days) following the effective date of a
Registration Statement of the Company filed under the Securities Act as may be
requested by the underwriter's representative. The obligations of Holders under
this Section 9 shall be conditioned (i) upon similar agreements being in effect
with each other shareholder who is an officer, director, or 5% shareholder of
the Company, (ii) if marketing limitations are sought by the underwriter's
representative, upon imposition of marketing limitations no more extensive than
those described in Subsection 3(b)(ii), and (iii) upon Holder participating in
such initial public offering pursuant to Section 3 of
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this Agreement. Notwithstanding the foregoing, the obligations described in this
Section 9 shall not apply to a Registration relating solely to employee benefit
plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the
future, or a Registration relating solely to a Rule 145 transaction on form S-4
or similar forms which may be promulgated in the future. The Company hereby
agrees that it shall not issue any shares of its capital stock or subscriptions,
options, conversion rights, warrants or other agreements, securities or
commitments obligating the Company to issue, deliver or sell, or cause to be
issued, delivered or sold, any shares of the Company's capital stock or any
securities convertible into or exchangeable for shares of the Company's capital
stock or obligating the Company to grant, extend or enter into any such
agreement or commitment (each an "Option"), unless the holder of such shares or
Options agrees to enter into an agreement substantially similar to this Section
9; provided however, that the foregoing obligation shall not apply to Options
granted under the Company's 1993 Stock Option Plan as amended.
10. TRANSFER OF RIGHTS
The right of first refusal and the right to cause the Company to Register
securities granted by the Company to the Investor under this Agreement may be
assigned by any Holder to a transferee or assignee of any Convertible Securities
or Registrable Securities not sold to the public acquiring at least twenty
percent (20%) of such Holder's Registrable Securities; provided, however, that
the Company must receive written notice within ten days after said transfer,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such Registration rights are being assigned.
11. MISCELLANEOUS
(a) No Conflicts
The parties hereto represent that they are not parties to and do not know
of any other agreements that conflict with any of the provisions of this
Agreement.
(b) Entire Agreement; Successors
This Agreement constitutes the entire contract between the parties hereto
relative to the subject matter hereof. Except as otherwise set forth herein, the
provisions of this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the parties hereto, including any successors
in interest to or transferees or assignees of any shares of capital stock of the
Company.
(c) Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement shall be considered duly executed and
delivered by a party hereto when an electronic facsimile transmission of the
signature page hereto and purporting to reflect the execution of such signature
page by a representative of such party shall have been delivered by such party
to the other parties hereto. Each party hereto agrees that if it executes this
Agreement by delivery
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of a facsimile transmission of the signature pages as provided in the preceding
sentence, it will thereafter deliver to each of the parties hereto duly executed
original counterparts of such signature pages.
(d) Modification
This Agreement shall not be subject to modification or amendment in any
respect, except by an instrument in writing signed by (a) the Company and (b)
the Holders of not less than fifty percent (50%) of the Registrable Securities.
(e) Applicable Law; Jurisdiction and Venue
This Agreement shall for all purposes be governed by and construed in
accordance with the laws of the State of Washington without regard to its
conflicts of law principles. The parties hereto agree that venue for any dispute
hereunder, or action on any obligation under this Agreement, shall be in Spokane
County, Washington, and the parties hereto submit to the jurisdiction of the
courts of the State of Washington for any dispute hereunder or action or
obligation under this Agreement.
(f) Notices
All notices, demands or other communications desired or required to be
given by any party to any other party hereto shall be in writing and shall be
deemed effectively given and received (a) upon personal delivery (including via
facsimile transmission), (b) the next business day after deposit for next-day
delivery with a nationally-recognized overnight delivery service, charges and
postage prepaid, (c) three (3) days after deposit with the United States Post
Office registered or certified, return receipt requested, postage prepaid,
addressed: (i) if to the Company, to the address specified on the signature page
hereto; (ii) if to the Investor, to the address specified on the signature page
hereto; or (iii) to such other addresses and to the attention of such other
individuals as the Company or the Investor shall have designated in writing to
the other parties.
For any notice delivered to the Company, a copy shall be also delivered
to:
Bruce A. Robertson
Garvey, Schubert & Barer
1191 Second Avenue, 18th Floor
Seattle, Washington 98101-2939
Fax: (206) 464-0125.
For any notice delivered to the Investor, a copy shall be also delivered
to:
Eric M. Sippel
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, Eighteenth Floor
San Francisco, California 94111
Fax: (415) 421-2922
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(g) Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provisions shall be excluded from this Agreement and
the balance of this Agreement shall be interpreted as if such provisions were so
excluded and shall be enforceable in accordance with its terms.
(h) Specific Performance and Expenses
Each of the parties to this Agreement agrees that the other parties to
this Agreement will be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants and/or
conditions of this Agreement by any party to this Agreement, the parties to this
Agreement shall, in addition to all other remedies, each be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with the provisions of this
Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
(i) Further Assurances.
Each party shall execute such other and further certificates, instruments
and other documents as may be necessary and proper to implement, complete and
perfect the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above written.
COMPANY:
SOLIGEN TECHNOLOGIES, INC.
By: ____________________________________
Address: 19408 Londelius
Northridge, California 91324
Fax: (818) 718-1221
Attn: President
INVESTOR:
KOYAH LEVERAGE PARTNERS, L.P.
By:_____________________________________
Title:__________________________________
601 W. Main Ave., Suite 600
Spokane, Washington 99201-0613
Fax: (509) 623-0588
Attn: Jim Simmons
KOYAH PARTNERS, L.P.
By:_____________________________________
Title:__________________________________
601 W. Main Ave., Suite 600
Spokane, Washington 99201-0613
Fax: (509) 623-0588
Attn: Jim Simmons
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