Exhibit 99.6
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 13th, 2001 (the "Closing Date") by and between Tanisys
Technology, Inc., a Wyoming corporation (the "Company") and New Century Equity
Holdings Corp., a Delaware corporation ("New Century") and the persons and
entities listed on Schedule A of that certain Series A Preferred Stock Purchase
Agreement dated as of even date herewith (the "Purchase Agreement")
(individually, New Century and all such persons and entities may be referred to
as "Purchaser," and, collectively, New Century and all such persons and entities
may be referred to as "Purchasers").
RECITALS
A. The Company and Purchasers have entered into the Purchase Agreement,
pursuant to which the Purchasers are purchasing that number of shares of the
Series A Preferred Stock of the Company ("Series A Preferred") specified in
Section 1.1 of the Purchase Agreement, subject to the terms provided therein
(the "Investment Securities").
B. As a condition to the consummation of the Purchase Agreement, the
Purchase Agreement provides that the Purchasers of Series A Preferred may
convert such Series A Preferred into Common Stock, and shall be granted certain
registration rights with respect to the shares of the Common Stock into which
the Series A Preferred may be converted, to be issued pursuant to the terms of
the Purchase Agreement, all as more fully set forth herein.
NOW, THEREFORE, in consideration of the agreements set forth in the
Purchase Agreement and of the mutual agreements and covenants hereinafter and
therein contained, the parties hereto agree as follows:
AGREEMENT
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "Registrable Securities"
means: any shares of Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in conversion or
exchange for, or in replacement of Series A Preferred; excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in
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which rights under this Section 1 are not assigned in accordance with this
Agreement or any Registrable Securities sold or eligible for sale to the public
or sold, or eligible for sale, pursuant to Rule 144 promulgated under the
Securities Act.
(c) SEC. The term "SEC or "Commission" means the U.S. Securities
and Exchange Commission.
(d) Closing Date. The term "Closing Date" shall have the same
meaning that is given to such term in the Purchase Agreement.
1.2 Demand Registration.
(a) Request by the Purchasers. At any time after sixty (60) days
after the Closing Date if the Company shall receive at any time a written
request ("Request") from New Century requesting that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities pursuant to this Section 1.2, then the Company shall
effect the registration under the Securities Act of all Registrable Securities
within ninety (90) days of such request.
(b) Underwriting. The Registrable Securities covered by the
Request may be offered by means of an underwriting if a majority of the holders
of the Series A Preferred so request and the Company so consents, which consent
will not be unreasonably withheld, and a majority of the holders of the Series A
Preferred shall so advise the Company as a part of its Request. If an
underwriting is requested by a majority of the holders of the Series A Preferred
in their Request, then such holders and the Company shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the mutual agreement of the
Company and such holders; provided, that neither the Company nor such holders
shall unreasonably refuse to agree to a managing underwriter selected by the
other, but shall in good faith attempt to select mutually agreeable managing
underwriters. Notwithstanding any other provision of this Section 1.2, if the
underwriters advise the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten, then the Company
shall so advise such holders, and the number of Registrable Securities that may
be included in the underwriting shall be reduced as required by the
underwriters; provided, that the number of shares of Registrable Securities to
be included in such underwriting and registration shall be reduced on a pro rata
basis with all other securities of the Company and any other selling security
holder. Any Registrable Securities excluded and withdrawn from such underwriting
shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company is
obligated to effect only two (2) such registration pursuant to this Section 1.2.
(d) Expenses. The Company shall bear all direct costs related to
the registration, including, without limitation, all federal and "blue sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company. The selling stockholders shall bear
all underwriting discounts and commission
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payable in connection with their sale of shares hereunder.
(e) Rights of the Company. Notwithstanding anything to the
contrary in this Section 1.2 or otherwise in this Agreement, the Company shall
not be obligated to take any action to effect any such registration pursuant to
this Section 1.2 as follows:
(i) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
(ii) If the Company, within ten (10) days of the receipt of
a registration Request under Section 1.2, gives written notice to the holders of
all Series A Preferred of the Company's bona fide intention to effect the
filing, within forty-five (45) days of receipt of such Request, of a
registration statement with the Commission for the sale of securities by the
Company (other than with respect to a registration statement relating to a Rule
145 transaction, an offering solely to employees or any other registration which
is not appropriate for the registration of Registrable Securities), in which
event, (x) the holders of all Series A Preferred shall be entitled to exercise
their piggyback registration rights under Section 1.3 hereof with respect to
such registration, (y) the Company shall be required in good faith to employ all
reasonable efforts to cause its registration statement to become effective and
to give prompt written notice to the holders of all Series A Preferred if the
Company abandons its effort to file or causes its registration statement to
become effective, and (z) in the event the Company gives notice that it has
abandoned its registration statement efforts, the Company shall promptly renew
its best efforts to register the Registrable Securities that were the subject of
the Series A Preferred demand registration Request if so requested in writing by
the holders of all Series A within ten (10) days after the holders of all Series
A Preferred's receipt of notice that the Company has abandoned its registration
efforts;
(iii) During the period starting with the filing of and
ending on the date ninety (90) days immediately following the effective date of
any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(iv) If the Company shall furnish to the holders of Series A
Preferred a certificate signed by the President of the Company stating that in
the good faith judgment of the Board of Directors of the Company it would be
seriously detrimental, for the specific reasons stated in such certificate, to
the Company or its shareholders for a registration
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statement to be filed in the near future, then the Company's obligation to use
its best efforts to register under this Section 1.2 shall be deferred for a
period not to exceed one hundred and twenty (120) days from the date of receipt
of the written Request from the holders of Series A Preferred; or
(v) Unless at least one hundred and eighty (180) days shall
have expired from the effectiveness of a previous registration of Registrable
Securities pursuant to this Section 1.2, or pursuant to a previous registration
under Section 1.3 below in which the holders of shares of Series A Preferred
were given the opportunity to include in such registration at least the lesser
of (i) twenty-five percent (25%) of the Registrable Securities held by the
holders of Series A Preferred, or (ii) all Registrable Securities then owned by
the holders of Preferred shares.
Subject to the foregoing clauses (i) through (v), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the holders of Series A Preferred.
1.3 Piggyback Registrations. The Company shall notify the holders of
Series A Preferred in writing at least twenty (20) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating solely to any
registration under Section 1.2 of this Agreement or any employee benefit plan or
a Rule 145 transaction) and will afford the holders of Series A Preferred,
subject to the terms and conditions set forth herein, an opportunity to include
in such registration statement all or any part of the Registrable Securities
then held by the holders of shares of Series A. The holders of Series A
Preferred shall, within five (5) business days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
the holders of Series A Preferred wishes to include in such registration
statement. If the holders of Series A Preferred decide not to include all of
their Registrable Securities in any registration statement thereafter filed by
the Company, the holders of Series A Preferred shall nevertheless continue to
have the right to include any Registrable Securities not included in such
registration statement in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein. If the holders
of Series A Preferred are given the opportunity to include in any registration
statement filed under this Section 1.3 at least the lesser of (i) twenty-five
percent (25%) of the Registrable Securities issued to the holders of Series A
Preferred pursuant to the Agreement, or (ii) all Registrable Securities then
owned by the holders of Series A Preferred, then the holders of Series A
Preferred shall not make a request for registration under Section 1.2 hereof for
at least one hundred and eighty (180) days after the earlier of the termination
of such offering or the effectiveness of such registration statement.
(a) Underwriting. If a registration statement under which the
Company gives notice under this Section 1.3 is for an underwritten offering,
then the Company shall so
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advise the holders of Series A Preferred. In such event, the holders of Series A
Preferred's right to include Registrable Securities in a registration pursuant
to this Section 1.3 shall be conditioned upon the holders of the Series A
Preferred s participation in the extent provided herein. The holders of the
Series A Preferred shall enter into an underwriting agreement in customary form
with the managing underwriter or underwriters selected by the Company for such
underwriting. Notwithstanding any other provision of this Purchase Agreement, if
the managing underwriter determines in good faith that marketing factors require
a limitation of the number of shares to be underwritten, then the managing
underwriters may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and second to the holders of the Series A Preferred; provided however,
that the right of the underwriters to exclude shares (including Registrable
Securities) from the registration and underwriting as described above shall be
restricted so that: (i) all shares that are not Registrable Securities and are
held by other shareholders of the Company, (except those shareholders with
registration rights that, as of the Effective Date of the Purchase Agreement,
are senior to or on a pari passu basis with those of the holders of the Series A
Preferred and are disclosed to the holders of the Series A Preferred in the
Purchase Agreement or any disclosure letter delivered to the holders of the
Series A Preferred pursuant to the Purchase Agreement), shall be reduced on a
pro rata basis with all other securities of the Company and any other selling
security holder; and (ii) the number of Registrable Securities included in any
such registration is not reduced below twenty percent (20%) of the shares
included in the registration, except if such lesser number of shares is caused
because of the pro rata reduction of (i) above. If a majority of the holders of
the Series A Preferred disapprove of the terms of any such underwriting, the
Series A Preferred may elect to withdraw therefrom by written notice to the
Company and the managing underwriter, delivered at least ten (10) business days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
(b) Expenses. The holders of Series A Preferred shall bear all
discounts, commissions or other amounts payable to underwriters or brokers with
respect to the sale of Registrable Securities by the holders of the Series A
Preferred in any offering registered under this Section 1.3 and fees and
disbursements of counsel for the holders of the Series A Preferred in connection
with such offering. Other expenses incurred in connection with a registration
pursuant to this Section 1.3, including, without limitation all federal and
"blue sky" registration and qualification fees, printers and accounting fees,
and fees and disbursements of counsel for the Company shall be borne by the
Company.
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1.4. Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, and except as
otherwise provided in this Section or otherwise in this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare promptly and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, keep such
registration statement effective for ninety (90) days (or until the earlier sale
of the Registrable Securities covered thereby), which registration statement
(including any amendments or supplements thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(b) Prepare promptly and file with the SEC 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.
(c) Furnish to the Series A Preferred shareholders such number of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it that are included in such registration.
(d) 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 of
Series A Preferred, 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.
(e) 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 underwriters of such offering.
(f) Notify the Series A Preferred shareholders at any time when a
prospectus relating to the Registrable Securities 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 the light of the circumstances then existing.
(g) Furnish, at the request of the Series A Preferred
shareholders, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through underwriters,
or, if such securities are not being sold through underwriters, on the date that
the registration statement with respect to such securities becomes
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effective, (i) an opinion, dated as of such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering and
reasonably satisfactory to the Series A Preferred shareholders, addressed to the
underwriters, if any, and to the Series A Preferred shareholders, and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a the Series A Preferred
shareholders, addressed to the underwriters, if any, and to the Series A
Preferred shareholders.
(h) Make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 promulgated under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of any registration statement and any
post-effective amendment thereto.
(i) Cooperate with the Series A Preferred shareholders, any
underwriter participating in any underwritten offering of Registrable
Securities, and any attorney, accountant or other agent retained by the Series A
Preferred shareholders or any such underwriter by providing any information
reasonably requested by any such persons in connection with their due diligence
investigation relating to the filing of the registration statement relating to
the Registrable Securities.
(j) Use its best efforts to cause all the Registrable Securities
covered by any registration statement to be listed on a national securities
exchange, if the Common Stock is then listed on a national securities exchange
and the listing of such Registrable Securities is then permitted under the rules
of such exchange.
(k) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of any
registration statement.
(l) Cooperate with the Series A Preferred shareholders and the
managing underwriter or underwriters of any offering involving Registrable
Securities, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be sold pursuant to a registration effected hereto, and enable
such certificates to be in such denominations or amounts as the case may be, and
registered in such names as the managing underwriter or underwriters, if any, or
the holders of Series A Preferred, may reasonable request.
(m) Take all other reasonable actions necessary to expedite and
facilitate the disposition of the Registrable Securities pursuant to the
registration statement.
1.5 Furnish Information. It shall be a condition precedent to the
obligations of
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the Company to take any action pursuant to Sections 1.2, or1.3 that the Series A
Preferred shareholders shall furnish to the Company such information regarding
it, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of its Registrable Securities.
1.6 Indemnification. In the event any Registrable Securities are
included in a registration statement under 1.2 or 1.3:
(a) By the Company. To the extent permitted by law, the Company
will indemnify and hold harmless the Series A Preferred shareholders, officers
and directors of the Series A Preferred shareholders, any underwriter (as
defined in the Securities Act) for the Series A Preferred shareholders and each
person, if any, who controls the Series A Preferred shareholders or such
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Securities Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement filed pursuant to this Section 1,
including any preliminary prospectus or final prospectus contained therein or in
any amendments or supplements thereto;
(ii) the omission or alleged omission to state in a registration
statement filed pursuant to this Section 1 (including any preliminary prospectus
or final prospectus contained therein or in any amendments or supplements
thereto), a material fact required to be stated therein, or necessary to make
the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or any rule or
regulation promulgated under the Securities Act, the 1934 Act or any federal or
state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each of the Series A Preferred shareholders, such
officer or director, underwriter or controlling person for any legal or other
expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided however, that the indemnity agreement contained in this subsection
1.6(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with information furnished expressly
for use in connection with such registration by the Series A Preferred
shareholders, or by such, officer, director, underwriter or controlling person,
or other authorized agents, of the Series A Preferred shareholders.
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(b) By the Series A Preferred Shareholders. To the extent
permitted by law, the Series A Preferred shareholders will indemnify and hold
harmless the Company, each of its directors, each of its officers, each person,
if any, who controls the Company within the meaning of the Securities Act, and
any underwriter, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, controlling person
or underwriter may become subject under the Securities Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) (1) arise out of or are based upon a
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with information furnished
by the Series A Preferred shareholders expressly for use in connection with such
registration, or (ii) any violation or alleged violation by the Series A
Preferred shareholders of the Securities Act, the 1934 Act, any federal or state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any federal or state securities law in connection with the
offering covered by such registration statement; and the Series A Preferred
shareholders will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided however, that the indemnity agreement contained in
this subsection 1.6(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Series A Preferred shareholders, which consent shall not be
unreasonably withheld; and provided further, that the total amounts payable in
indemnity by the Series A Preferred shareholders under this Section 1.6(b) in
respect of any Violation shall not exceed the net proceeds received by the
Series A Preferred shareholders in the registered offering out of which such
Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
this Section 1.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.6, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that 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 conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.6.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Series A Preferred shareholders are
subject to the condition that,
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insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or in the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreements shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) the Series A Preferred shareholders or the Company (and/or any
officer, director, underwriter or controlling person who may be indemnified
under Section 1.6(a) or Section 1.6(b)), makes a claim for indemnification
pursuant to this Section 1.6 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 1.6 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of the Series A Preferred
shareholders or the Company (and/or any officer, director, underwriter or
controlling person who may be indemnified under Section 1.6(a) or 1.6(b)) in
circumstances for which indemnification is provided under this Section 1.6;
then, and in each such case, the Company and the Series A Preferred shareholders
(and/or such other person) will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in proportion to their relative fault as determined by a court of
competent jurisdiction; provided, however, that in no event (i) shall the Series
A Preferred shareholders be responsible for more than the portion represented by
the percentage that the public offering price of the Registrable Securities
offered and sold by the Series A Preferred shareholders under the registration
statement bears to the public offering price of all securities offered and sold
under such registration statement and (ii) shall the Series A Preferred
shareholders be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by the Series
A Preferred shareholders pursuant to such registration statement, and in any
event, no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and the Series A
Preferred shareholders under this Section 1.6 shall survive the completion of
any offering of Registrable Securities in a registration statement, and
otherwise.
1.7 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, for
so long as the Series A Preferred shareholders owns any Registrable Securities,
the Company agrees to:
(a) Make and keep public information available, as those terms
are
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understood and defined in Rule 144 under the Securities Act, at all times;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the 1934 Act; and
(c) So long as the Series A Preferred shareholders own any
Registrable Securities, to furnish to the Series A Preferred shareholders
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as the Series A Preferred shareholders may reasonably request in
availing itself of any rule or regulation of the Commission allowing any such
shareholder to sell any such securities without registration.
1.8 Termination of the Company's Obligations. The Company shall have
no obligations to register Registrable Securities held by the Series A Preferred
shareholders (i) if all Registrable Securities have been registered and sold
pursuant to registrations effected pursuant to this Agreement; or (ii) to the
extent such Registrable Securities are eligible for resale pursuant to Rule 144
under the Securities Act.
1.9 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the holders of a majority the Series A Preferred, enter into any agreement
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder (a) to include such securities in
any registration filed under Section 1.2 or1.3 hereof, unless under the terms of
such agreement, such holder or prospective holder may include such securities in
any such registration only to the extent that the inclusion of his securities
will not reduce the amount of the Registrable Securities of the Series A
Preferred shareholders which is included, or (b) to make a demand registration
which could result in such registration statement being declared effective (i)
during the effectiveness of any registration statement effected pursuant to
Section 1.2, or (ii) within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 1.2.
2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of the Series A Preferred shareholders under Section 1
hereof may be assigned only to (a) any family member or trust for the benefit of
a Series A Preferred shareholder, (b) any party who acquires ownership or
control of any Series A Preferred shareholder through a merger, consolidation,
sale of assets or similar business combination, (c) any transferree who acquires
not less than 2,500,000 shares of Registrable Securities, or (d) any affiliate
of any Series A Preferred shareholders; provided however that no party may be
assigned any of the foregoing rights until the Company is given written notice
by the assigning party at the time of such assignment stating the name and
address of the assignee and identifying the securities of the Company as to
which the rights in question are being assigned; and provided further, that any
such assignee shall
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receive such assigned rights subject to all the terms and conditions of this
Agreement, including without limitation the provisions of this Section 2.
3. GENERAL PROVISIONS
3.1 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) If to the Company, at:
Tanisys Technology, Inc.
12201 Technology Blvd., Suite 125
Austin, Texas 78727
Attention: Chief Executive Officer
(b) If to the Purchasers, to the addresses and facsimile
numbers set forth on Schedule A to the Agreement.
with a copy to:
Loeffler, Jonas & Tuggey LLP
700 North St. Mary's Street, Suite 800
San Antonio, Texas 78205
Attn: Timothy N. Tuggey
Telephone: (210) 354-4300
Facsimile: (210) 354-4034
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
3.3 Entire Agreement. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
3.4 Amendment of Rights. Any provision of this Agreement may be amended and
the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of New Century (and/or any of their permitted successors or assigns).
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3.5 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of Texas as
applied to agreements among Texas residents entered into and to be performed
entirely within Texas, excluding that body of law relating to conflict of laws
and choice of law.
3.6 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
3.7 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.8 Successors And Assigns. Subject to the provisions of Section 2.1, the
provisions of this Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of the parties hereto.
3.9 Captions. The captions to sections of this Agreement have been inserted
for identification and reference purposes only and shall not be used to construe
or interpret this Agreement.
3.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
THE COMPANY:
TANISYS TECHNOLOGY, INC.,
a Wyoming Corporation
By: /s/ Charles T. Comiso
---------------------
Its President
THE PURCHASERS:
By their Execution of the
Subscription Agreement
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