REGISTRATION RIGHTS
AND
SHAREHOLDERS AGREEMENT
This Registration Rights and Shareholders Agreement dated as of
December 31, 1996 ("Agreement") by and between Industrial Training Corporation,
a Maryland Corporation ("ITC") and the Shareholders of Anderson Soft-Teach as
set forth on Exhibit A hereto (individually, "Shareholder" and collectively,
"Shareholders"). Capitalized terms used in this Agreement and not otherwise
defined herein shall have the same meaning as in the Merger Agreement as defined
below;
WITNESSETH:
WHEREAS, each Shareholder, as of the date hereof, is the owner
of the number of shares of common stock, no par value, of Anderson Soft-Teach, a
California corporation ("Company"), set forth on Exhibit A hereto ("Shares");
WHEREAS, ITC, ITC Acquisition Corporation, a newly formed,
wholly-owned subsidiary of ITC ("ITC AC"), and the Company are parties to that
certain Agreement and Plan of Reorganization dated as of December 31, 1996
("Merger Agreement") pursuant to which ITC AC will be merged with and into the
Company ("Merger") and all of the issued and outstanding capital stock of the
Company will be converted into the right to receive 300,000 shares of common
stock of ITC, par value $0.10 per share ("Common Stock"), and cash in the amount
of $4,500,000;
WHEREAS, in order to improve the transferability of the shares
to be received by the Shareholders pursuant to the Merger ("Restricted
Securities"), the Shareholders have requested ITC to provide to the Shareholders
limited registration rights with respect to the Restricted Securities to be
received by the Shareholders pursuant to the Merger and ITC has agreed to
provide such rights on the terms and subject to the conditions herein; and
WHEREAS, the execution and delivery of this Agreement by ITC
and the Shareholders is a condition to the obligation of ITC to effect the
Merger;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. For purposes of this Agreement:
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board" means the Board of Directors of ITC.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Registrable Securities" shall mean (i) the 300,000 shares of Common
Stock, subject to adjustment pursuant to Sections 1.2(d) and 8 of the Merger
Agreement, received by the Shareholders pursuant to the Merger and (ii) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Common Stock.
"Restricted Securities" shall mean the Registrable Securities upon
original issuance thereof, subject to the provisions of Article III hereof.
"Registration Statement" shall mean a registration statement filed or
to be filed by ITC under the Securities Act (other than on Form S-8 or S-4)
which is available to register under the Securities Act any of the Registrable
Shares by or for the account of any Shareholder, amendments and supplements to
such Registration Statement, including post-effective amendments, and all
exhibits to and all information incorporated by reference in such Registration
Statement. Such term includes any prospectus included in such Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments, and supplements to such prospectus, including post-effective
amendments, and all information incorporated by reference in such prospectus.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer, transferring or transferred" shall mean any sale or other
disposition of any Registrable Securities which would constitute a sale thereof
under the Securities Act.
1.2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to
the benefits of this Agreement are the Registrable Securities but with respect
to any particular Registrable Security, only so long as such security continues
to be a Restricted Security. A Restricted Security ceases to be a Restricted
2
Security when it (a) has been effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering it or (b)
has been sold pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act.
ARTICLE II
REPRESENTATIONS, WARRANTIES, AND COVENANTS
OF ITC AND THE COMPANY
2.1. ITC REPRESENTS, WARRANTS AND COVENANTS:
2.1.1. DUE ORGANIZATION. ITC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland.
ITC has requisite corporate power to own and operate its properties and assets,
and to carry on its business as presently conducted and as proposed to be
conducted. ITC is presently qualified to do business as a foreign corporation in
each jurisdiction where the failure to be so qualified would have a material
adverse effect on ITC's business as now conducted or as now proposed to be
conducted.
2.1.2. CAPITALIZATION. The authorized capital stock of ITC
consists of 12,000,000 shares of Common Stock and 3,613,788 shares of Common
Stock were outstanding on December 23, 1996. All of the shares of Common Stock
to be issued to the Shareholders in accordance with the Merger Agreement will be
offered, issued, sold and delivered by ITC in compliance with all applicable
state and federal laws concerning the issuance of securities and none of such
shares were or will be issued in violation of the preemptive rights of any
shareholder of ITC.
2.1.3. AUTHORIZATION; VALIDITY OF OBLIGATIONS. The
representatives of ITC executing this Agreement have all requisite corporate
power and authority to enter into and bind ITC to the terms of this Agreement.
ITC has the full legal right, power and corporate authority to enter into this
Agreement and the transactions contemplated hereby. The execution and delivery
of this Agreement by ITC and the performance by ITC of the transactions
contemplated herein have been duly and validly authorized by all necessary
corporate action. This Agreement is a legal, valid and binding obligation of ITC
enforceable in accordance with its terms except as such enforceability may be
limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
2.2 THE SHAREHOLDERS REPRESENT, WARRANT AND COVENANT:
2.2.1. VALIDITY OF OBLIGATIONS; BENEFICIAL OWNERSHIP. Each
Shareholder has full right, power and authority to execute and deliver this
Agreement and to perform his or her obligations hereunder and each Shareholder
has duly executed and delivered this Agreement and this Agreement constitutes a
legal, valid and binding obligation of each Shareholder, enforceable against
each Shareholder in accordance with its terms. Each Shareholder is the sole
owner of the amount of Shares as set forth below the Shareholder's name on the
signature page hereto and such Shares represent all Shares owned by such
Shareholders as of the date hereof, and no Shareholder has the right to acquire,
nor is he or she the "beneficial owner" (as such term is defined in Rule 13d-3
under the Exchange Act) of, any other shares of any class of capital stock of
the Company or securities convertible into or exchangeable or exercisable for
any shares of any class of capital stock of the Company (other than shares
subject to options granted by the Company). Each Shareholder owns the Shares, as
set forth below his or her name on the signature page hereto, free and clear of
3
all liens, claims, pledges, charges, proxies, restrictions, encumbrances,
proxies, voting trusts and voting agreements of any nature whatsoever other than
as provided by this Agreement.
2.2.2. SECURITIES REPRESENTATIONS. Each Shareholder (a) has
such knowledge, sophistication and experience in business and financial matters
that they are capable of evaluating the merits and risks of ownership of the
shares of Common Stock, (b) fully understands the nature, scope and duration of
the limitations on transfer contained in this Agreement and (c) can bear the
economic risk of ownership of the shares of Common Stock and a complete loss of
the value of the shares of Common Stock to be received in the Merger. The
Shareholders have had an adequate opportunity to ask questions and receive
answers from the officers of ITC concerning the business, operations and
financial condition of ITC. The Shareholders do not have any contract,
undertaking, agreement, written or oral, with any other person to transfer or
grant participations in any shares of Common Stock to be acquired by such
Shareholders in the Merger.
2.2.3. ITC DISCLOSURE DOCUMENTS. Each of the Shareholders has
received and reviewed a copy of the prospectus dated September 29, 1995, ITC's
annual report on Form 10-KSB and proxy statement for the fiscal year ended
December 31, 1995 and ITC's reports on Form 10-QSB for the fiscal quarters ended
March 30, 1995, June 30, 1996 and September 30, 1996 ("ITC Disclosure
Documents").
2.2.4. NO CONFLICT. The execution, delivery and performance by
each Shareholder of this Agreement will not conflict with, require a consent,
waiver or approval under, or result in a breach of or default under, any of the
terms of any contract, commitment or other obligation (written or oral) to which
any Shareholder is bound.
2.2.5. ABSENCE OF CLAIMS AGAINST THE COMPANY. The Shareholders
have no claims against the Company.
ARTICLE III
TRANSFERABILITY OF RESTRICTED SECURITIES
3.1 RESTRICTIONS ON TRANSFER. The Common Stock received by the
Shareholders in connection with the Merger may not be sold, assigned, pledged,
hypothecated or transferred, or any interest therein conveyed to any other
Person, except in accordance with the registration provisions of the federal and
state securities laws or applicable exemptions therefrom. The certificates
representing such shares of Common Stock shall be stamped or otherwise imprinted
with a legend in the following form (in addition to any legend required under
any other agreement between the Shareholder and ITC or under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND ARE NOT THE SUBJECT OF A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
4
The Shareholders consent to ITC making a notation on its records and
giving instructions to any transfer agent of the Restricted Securities in order
to implement the restrictions on transfer established in this Section 3.1.
3.2. NOTICE OF TRANSFER. By acceptance of the Restricted Securities,
each Shareholder agrees to comply in all respects with the provisions of this
Section 3.2. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities (other than (i) a Transfer not involving a change in
beneficial ownership, (ii) in transactions without consideration of Restricted
Securities by a Shareholder to any spouse or child, controlled foundation or the
estate or decedents of such Shareholder, or (iii) in transactions in compliance
with Rule 144) and unless there is in effect a Registration Statement under the
Securities Act covering the proposed Transfer pursuant to either Section 4.1 or
4.2 of this Agreement, the holder thereof shall give written notice to ITC of
such holder's intention to effect such transfer, sale, assignment or pledge.
Each such notice shall describe the manner and circumstances of the proposed
Transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied, at such holder's expense by either (i) a written opinion of legal
counsel who shall be, and whose legal opinion shall be, reasonably satisfactory
to ITC addressed to ITC, to the effect that the proposed Transfer of the
Restricted Securities may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the Commission that action will not
result in a recommendation by the staff of the Commission that action be taken
with respect thereto, whereupon the holder of such Restricted Securities shall
be entitled to Transfer such Restricted Securities in accordance with the terms
of the notice delivered by the holder to ITC. Any certificate evidencing the
Restricted Securities Transferred as above provided shall bear, except if such
Transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 3.1 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such holder and ITC such
legend is not required in order to establish compliance with any provision of
the Securities Act.
ARTICLE VI
REGISTRATION RIGHTS
4.1. DEMAND REGISTRATION.
(a) Pursuant to this Section 4.1, upon the affirmative vote by a
majority in interest of the Shareholders, ITC will provide the Shareholders as a
group and not individually, with a right to register Registrable Securities in
an offering on one occasion; provided, however, that (i) ITC shall not be
required to register any Registrable Securities pursuant to a request under this
Section 4.1 by the Shareholders, acting as a group by an affirmative vote of a
majority in interest and not individually, if the Shareholders had the
opportunity to register Registrable Securities pursuant to Section 4.2 hereof
within the six months immediately preceding such request for registration, but
declined to do so and (ii) ITC shall not be obligated to effect any registration
requested pursuant to this Section 4.1 if the number of shares of Registrable
Securities then held by the Shareholders shall be less than one hundred and
fifty thousand (150,000) shares of the then outstanding Common Stock. The
Shareholders may exercise this right at any time commencing on the first
anniversary of the date of closing of the Merger Agreement and ceasing on the
second anniversary thereof, by giving written notice to ITC that the
Shareholders desire to have the Registrable Securities registered for sale under
the Securities Act.
5
(b) Upon receipt of such notice, ITC will file, as soon as practicable
but not later than 90 days after receipt of such notice, and subject to Sections
4.1(a) and 4.1(e) hereof, a Registration Statement on any appropriate form under
the Securities Act for an offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act. ITC agrees to use its reasonable best efforts
to keep such Registration Statement continuously effective for a period of three
months following the date on which such Registration Statement is declared
effective; provided, however, that such period may be extended at ITC's
discretion for an additional three month period in the event that market
circumstances have impaired distribution of the Registrable Securities during
the initial three month period.
(c) If the Shareholders intend to distribute the Registrable Securities
covered by the request by means of an underwritten offering, they shall so
advise ITC as a part of its request made pursuant to this Section 4.1. In
addition, the Shareholders shall select the investment banker or investment
bankers and manager or managers in any such underwritten offering; provided,
that such investment bankers and managers must be reasonably satisfactory to
ITC. The Shareholders shall enter into an underwriting agreement in customary
form with ITC and with the underwriter or underwriters. The Shareholders may not
participate in any underwritten registration under this Section 4.1 unless they
(i) agree to sell their securities on the basis provided in any underwriting
arrangements approved and (ii) complete and execute all questionnaires, powers
of attorney, indemnities, lock-up letters, underwriting agreements and other
documents required under the terms of such underwriting arrangements and (iii)
at least 40% of the outstanding Registrable Securities are included in such
underwritten offering. In connection with any underwritten offering including
securities being issued or sold by ITC, ITC shall be entitled to approve the
terms of the underwriting arrangements.
(d) If any of the Registrable Securities registered pursuant to any
Registration Statement pursuant to this Section 4.1 are to be sold in an
underwritten offering, and the managing underwriter or underwriters deliver an
opinion to ITC and the Shareholders that the total number of shares of Common
Stock which the Shareholder and any other Persons intend to include in such
offering exceeds the number of shares that can be sold in such offering, there
shall be included in such underwritten offering the number of shares of Common
Stock which in the opinion of such underwriters can be sold, and such shares
shall be allocated pro rata among the holders of shares of Common Stock to be
sold on the basis of the number of shares of Common Stock to be registered;
provided, that if shares of Common Stock are being offered for the account of
other Persons as well as the Shareholders, a reduction in number of shares shall
first be made from the shares intended to be offered by such Persons other than
the Shareholders.
(e) Anything in this Agreement to the contrary notwithstanding, ITC
shall not be required to register any Registrable Securities pursuant to this
Section 4.1 if the Shareholders, acting as a group by an affirmative vote of a
majority in interest and not individually, had the opportunity to register
Registrable Securities pursuant to Section 4.2 hereof within the six months
immediately preceding a request for registration pursuant to this Section 4.1,
but declined to do so; provided, however, that the provisions of this paragraph
(d) shall not apply if the Shareholders requested registration of such
Registrable Securities pursuant to Section 4.2 hereof and 25 percent or more of
such Registrable Securities were excluded from the offering by the managing
underwriter or underwriters thereof.
4.2. PIGGYBACK REGISTRATION RIGHTS.
(a) At any time within two years of the date of closing of the Merger
Agreement that ITC proposes to register (including for this purpose a
6
registration effected by ITC for Shareholders other than the Shareholders,
except as set forth below) any shares of its Common Stock under the Securities
Act for sale within such two-year period (other than registration of ITC's
Common Stock for issuance or sale (i) pursuant to Section 4.1 hereof, (ii) in
connection with (A) employee or non-employee director compensation or benefit
programs, (B) an exchange offer or an offering of securities solely to the
existing Shareholders or employees of ITC, or (C) an acquisition, merger or
other business combination using a registration statement on Form S-4 or any
successor or other appropriate form), ITC will give prompt written notice
(which, in any event, shall be given no less than 20 days prior to the filing of
a registration statement with respect to such offering) to the Shareholders of
its intention to do so and, upon the written request of Shareholders, acting as
a group by an affirmative vote of a majority in interest and not individually,
sent within 15 days after the effective date of any such notice, ITC will,
subject to the provisions of Section 4.2(b) hereof, use its reasonable best
efforts to cause all Registrable Securities as to which the Shareholders shall
have so requested registration, to be registered under the Securities Act, all
to the extent necessary to permit the sale in such offering of the Registrable
Securities so registered on behalf of the Shareholders in the same manner as ITC
(or Shareholder other than the Shareholders, as the case may be) proposes to
offer its shares of Common Stock.
(b) ITC shall use its reasonable best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Registrable Securities requested by the Shareholders to be included in the
registration for such offering on the same terms and conditions as the shares of
Common Stock of ITC included therein. Notwithstanding the foregoing, if the
managing underwriter of underwriters of such offering deliver an opinion to ITC
and the Shareholders that the total number of shares of Common Stock which the
Shareholders or ITC, and any other Person, intend to include in such offering
will in the good faith opinion of such managing underwriter or underwriters
materially and adversely affect the success of such offering, then the number of
shares of Common Stock to be offered for the account of the Shareholders shall
be reduced pro rata based upon the number of shares of Common Stock proposed to
be sold by ITC, the Shareholders and other Persons to the extent necessary to
reduce the total number of shares of Common Stock to be included in such
offering to the number of shares recommended by such managing underwriter;
provided, that if shares of such reduction shall first be made form the shares
of Common Stock intended to be offered by such Persons other than the
Shareholders.
4.3. REGISTRATION EXPENSES. All expenses incurred in connection with a
registration, filing or qualification pursuant to Section 4.1 or 4.2 hereof,
including, without limitation, registration, filing and qualification fees,
printers' and accounting fees, and the fees and disbursements of counsel for
ITC, shall be borne and paid by ITC, with the exception of fees and
disbursements of the Shareholders' counsel, which shall be borne by the
Shareholders. In addition, the Shareholders shall bear and pay all underwriting
discounts and selling commissions attributable to sales of Registrable
Securities.
4.4. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement filed pursuant to
Section 4.1 or 4.2 hereof, ITC shall indemnify and hold harmless the
Shareholders, each underwriter who may purchase from the Shareholders or sell
any Registrable Shares for the Shareholders and each Person who controls such
underwriter, within the meaning of the Securities Act, and each of their
7
respective directors, officers, employees, trustees and agents, from and against
any and all losses, claims, damages, liabilities and expenses caused by any
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement or any related state securities or blue sky
applications or other instruments or caused by any omission or alleged omission
to state in such Registration Statement or any related state securities or blue
sky applications or other instruments any material fact required to be stated or
necessary to make the statements which are made not misleading, except insofar
as such losses, claims, damages, liabilities or expenses are caused by any such
untrue statement or by any such omission that was furnished in writing to ITC by
the Shareholders, underwriter or controlling person expressly for use in such
Registration Statement or any related state securities or blue sky applications
or other instruments and was used in accordance with such writing.
(b) Each Shareholder agrees, severally and not jointly, to indemnify
and hold harmless ITC, its directors, each officer signing such Registration
Statement, each other person whose securities are included in such Registration
Statement, each underwriter who may purchase from or sell any securities for ITC
or any other Person pursuant to such Registration Statement and each Person, if
any, who controls ITC, any such other Person or any such underwriter, within the
meaning of the Securities Act, and each of their respective directors, officers,
employees, trustees and agents, from and against any and all losses, claims,
damages, liabilities and expenses, caused by any untrue statement of a material
fact furnished in writing to ITC by the Shareholders expressly for use in such
Registration Statement or any related state securities or blue sky applications
or other instruments and used in accordance with such writing and from any
omission therefrom of a material fact needed to be furnished or necessary to
make the information furnished not misleading; provided, however, that, no such
Shareholder shall be liable for any claims hereunder in excess of the amount of
proceeds received by such Shareholder from the sale of Registrable Securities
pursuant to the Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, enclosing a copy of all
papers served on such indemnified party, but failure to so notify an
indemnifying party shall not relieve it of any liability which it may have to
the indemnified party under such subsection if such failure does not materially
prejudice the indemnifying party in the defense of any such action, and shall
not relieve such indemnifying party from any liability which it may have other
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, separately or jointly with any other
indemnifying party, may assume the defense of such action with counsel chosen by
it and approved by the indemnified party or parties defendant in such action,
provided that if any such indemnified party reasonably determines that there may
be legal defenses available to such indemnified party which are different from
or in addition to those available to such indemnifying party or that
representation of such indemnifying party and any indemnified party by the same
counsel would present a conflict of interest, then such indemnifying party or
parties shall not be entitled to assume such defense. If an indemnifying party
is not entitled to assume the defense of such action as a result of the proviso
to the preceding sentence, counsel for such indemnifying party shall be entitled
to conduct the defense of such indemnifying party and counsel for such
indemnified party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions of this paragraph,
such indemnifying party shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any one local counsel)
separate from the indemnifying parties' own counsel for all indemnified parties
8
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision agreement provided for in this
Section 4.4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, ITC, and the Shareholders
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by said indemnity agreement incurred by ITC,
and the Shareholders, as incurred; provided that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between ITC, and the Shareholders, such parties
shall contribute to such aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of ITC, on the
one hand, and the and the Shareholders, on the other hand, with respect to the
statements or omissions which resulted in such loss, claim, damage, liability or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of ITC, on the one hand, and of the
Shareholders, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by ITC, on the one hand, or by or on behalf of the
Shareholders, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
ITC and the Shareholders of the Registrable Securities agree that it would not
be just and equitable if contribution pursuant to this Section 4.4 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 4.4, each director, officer, employee, trustee, agent and Person,
if any, who controls the Initial Purchasers or a Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchasers or such Holder, and
each director, officer, employee, trustee and agent of ITC, and each Person, if
any, who controls ITC within the meaning of the Securities Act shall have the
same rights to contribution as ITC. No party shall be liable for contribution
with respect to any action, suit, proceeding or claim settled without its
written consent.
ARTICLE V
MISCELLANEOUS
5.1. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFIT. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective permitted successors and assigns. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
and their respective permitted successors and assigns any rights or remedies
under or by reason of this Agreement, except as expressly provided in this
Agreement.
5.2. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the substantive laws of the State of Maryland,
without giving effect to the principles of conflicts of law thereof.
5.3. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all, the parties hereto.
9
5.4. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are inserted for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.5. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
If to ITC:
Industrial Training Corporation
13515 Dulles Technology Drive
Herndon, Virginia 22071
Attn: Frank A. Carchedi
Vice President and Chief Financial Officer
If to a Shareholder:
Anderson Soft-Teach
983 University Avenue
Los Gatos, California 95030
Attn: Warren E. Anderson
5.6. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the written consent of ITC and a
majority of the Shareholders is obtained.
5.7. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
5.8. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter herein contained. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by ITC in connection
with Restricted Securities received by the Shareholders pursuant to the Merger.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto all as of the day and year first above written.
INDUSTRIAL TRAINING CORPORATION
By: /s/ Frank A. Carchedi
-----------------------------------
Name: Frank A. Carchedi
Title:
The foregoing Registration Rights and Shareholder Agreement is hereby confirmed
and accepted as of the date first above written.
WARREN E. ANDERSON
/s/ Warren E. Anderson
-------------------------------------------
As Attorney-in-Fact for the Shareholders
as set forth on Exhibit A hereto
December 31, 1996
-----------------
Date