EXHIBIT 10.19
AGREEMENT
This Agreement made and entered into by and between Snell & Wilcox Limited
("S&W") and nVIEW Corporation ("nVIEW"), a Virginia corporation, this 21st day
of January 1998.
Whereas, S&W is an engineering-led, electronics group specializing in the
invention, design and manufacture of high-quality, multi-standard, digital image
processing products; and
Whereas, nVIEW is in the business of developing and marketing high quality
electronic projectors and visual display solutions; and
Whereas, S&W is willing to develop, in cooperation with nVIEW, a video board to
be incorporated into nVIEW's projector products; and
Whereas, S&W and nVIEW intend to work together in the development, marketing and
production of an nVIEW projector incorporating S&W's new video board.
Now, therefore, the parties hereto hereby agree as follows:
1. Development of Video Board. Immediately following execution of this
Agreement, S&W will commence development of a video board (the "Video
Board") to fulfill the criteria and functions described in Appendix A
(Product Specification #106715) to the Supply Agreement dated December
11, 1997, between the parties hereto of (the "Supply Agreement"), which
Video Board will be incorporated into nVIEW's projector (the
"Projector"). The Video Board will provide high quality enhancement of
projected images and will permit a variety of input signals. S&W will
strive to complete the development of Beta units of the Video Board by
April 17, 1998, and to produce production units of the Video Board for
shipment as soon as practicable after the Beta Video Board is approved
by nVIEW. Both S&W and nVIEW will work towards completion of production
units of the Video Board on or before May 8, 1998.
2. Collaboration. S&W and nVIEW shall collaborate their efforts towards
joint engineering and marketing, including but not limited to (i)
evaluating the possibility of building the Projector at S&W's
manufacturing facility, (ii) evaluating other joint development and
manufacturing opportunities, such as nVIEW manufacturing a projector
for sale under S&W's name, and (iii) engaging in joint marketing (cost
sharing) opportunities.
3. Exclusivity. S&W covenants and agrees that it will not sell the Video
Board described in Appendix A to the Supply Agreement during the
Exclusive Period (as defined below). The Exclusive Period shall
commence on the date of execution of this Agreement. The Exclusive
Period shall end 12 months from delivery of the first production units;
provided,
1
however, if nVIEW fails to purchase at least the number of Video Boards
set forth below during the periods set forth below, S&W may, at its
option, terminate the Exclusive Period by providing nVIEW with written
notice of such election within thirty (30) days after the end of a
period during which nVIEW fails to purchase the minimum number of Video
Boards as set forth below:
Minimum number of Video Boards
Period to be ordered during the period
First 90 day period following delivery of 100
first production units
Second 90 day period following delivery 200
of first production units
Third 90 day period following delivery of 300
first production units
Fourth 90 day period following delivery 400
of first production units
Prior to expiration of the Exclusive Period, S&W and nVIEW may mutually
agree in writing to extend the Exclusive Period for one or more
additional six month periods on such terms and conditions as the
parties shall determine at the time. In the event S&W receives an offer
that it considers commercially advantageous from a third party to
purchase the Video Board, S&W shall advise nVIEW of such offer and
nVIEW may, but shall not be obligated to, agree in writing to permit
such sale at similar margins and on such terms as S&W and nVIEW shall
agree. Any agreement by nVIEW to permit specific sales of the Video
Board to third parties during the Exclusive Period shall not limit or
adversely affect the enforceability of this paragraph with respect to
other sales of the Video Board.
4. Pricing. During the period of the Supply Agreement and any successor
agreement(s) thereto, S&W shall sell Video Boards to nVIEW at the
lowest price at which Video Boards are then being sold to other
projector manufacturers.
5. Advertising. The products that include the Video Board may be marketed
in a manner to indicate to the public that S&W's product is
incorporated into it. The exact words used in such advertising or
marketing shall be approved in advance by S&W.
6. Consideration.
(a) In consideration for S&W's agreements contained herein and
without cash consideration, nVIEW shall issue up to 750,000 shares of
nVIEW's common stock,
2
without par value (the "Shares") to S&W, or its nominees, upon the date
S&W receives notification of acceptance of the Video Board by nVIEW
(the "Measurement Date"). Acceptance of the Video Board by nVIEW must
be in writing and signed by the CEO and the CFO of the Company.
Acceptance may be determined at the discretion of nVIEW on receipt of a
prototype board, but not later than the date on which nVIEW first
demonstrates, offers for sale or sells the Projector. The Measurement
Date shall be the date used for valuation of the Shares to be issued.
Recognizing the importance of time to market and achieving the
Measurement Date in the first quarter of 1998, the number of Shares
issued to S&W shall be reduced according to the penalty schedule below,
for failure by S&W to timely deliver the Video Board. The penalty may
only be enforced if nVIEW has completed development of its Projector
and is delivering the Projector to customers with nVIEW's own video
board in place. nVIEW may also, in its own discretion, determine the
cause for delay was reasonable and/or beyond the control of S&W and
waive all or any portion of the penalty.
Measurement Date Penalty Cumulative Penalty
May 1 - May 15 0 0
May 16- May 31 150,000 150,000
June 1 - June 15 150,000 300,000
June 16 - June 30 200,000 500,000
July 1 - July 15 250,000 750,000
An additional 500,000 Shares may be issued based on projected
unit sales of the nVIEW Projector incorporating the S&W Video Board. A
forecast of the number of units expected to be sold during the twelve
month period immediately following the Measurement Date will be jointly
prepared by nVIEW and S&W. The parties must mutually agree to the
number of units to ensure conformance with nVIEW's marketing
projections and S&W's production plans. If the number of units is equal
to or greater than 1,000 but less than 2,000, an additional 250,000
Shares will be issued. In the alternative, if the number of units is
equal to or greater than 2,000, a total of 500,000 Shares will be
issued. If the parties are unable to agree on the number of units in
the forecast within 45 days, then the Chief Executive of each company
will meet within 10 days to resolve the difference.
(b) Shares issued pursuant to this paragraph shall not be
registered and the certificate evidencing the Shares shall contain the
appropriate legends indicating such fact. The Shares issued to S&W
shall rank pari-parsu with all of nVIEW's existing Shares. In the event
that prior to the date Shares are issued, nVIEW subdivides its
outstanding Shares or issues a stock dividend on its outstanding
Shares, the number of Shares to be
3
issued pursuant to this paragraph 6 in effect immediately prior to such
subdivision or the issuance of such dividend shall be proportionately
increased in order to provide S&W the same percentage ownership of
nVIEW that it would have had immediately prior to such subdivision or
the issuance of such dividend. Similarly, in the event prior to
issuance of the Shares nVIEW engages in a reverse stock split or
similar transaction that decreases the number of Shares outstanding for
all shareholders, then the number of Shares to be issued pursuant to
this paragraph 6 in effect immediately prior to such reverse stock
split or similar transaction shall be proportionately decreased in
order to provide S&W the same percentage ownership of nVIEW that it
would have had immediately prior to such reverse stock split or similar
transaction.
(c) Simultaneously with the issuance of the Shares, S&W and
nVIEW shall enter into an agreement granting S&W piggy-back
registration rights and demand registration rights which agreement
shall be in substantially the form attached hereto as Exhibit A.
(d) nVIEW represents and warrants to S&W that the Shares
issued pursuant to this Agreement shall, subject to the approval
contemplated under Section 8 hereof, be validly issued, fully paid and
nonassessable. nVIEW further represents and warrants that the issuance
of Shares to S&W pursuant to this Agreement will not (i) conflict with
or violate the articles of incorporation or bylaws of nVIEW, (ii)
except as set forth in Exhibit B, conflict with, breach, or constitute
a default under any instrument or agreement to which nVIEW is a party
or by which it is bound, (iii) cause nVIEW to be in violation of any
applicable law, regulation, or order of any governmental authority,
(iv) except as set forth in Exhibit B hereto and as contemplated under
Section 8 hereof, require the consent or approval of any shareholder or
creditor of nVIEW or any other entity, or (v) be subject to any
pre-emptive or similar rights in favor of any shareholder or any other
entity. nVIEW agrees to defend, indemnify and hold S&W harmless against
any claim by any shareholder or creditor of nVIEW regarding the
issuance of Shares contemplated by this Agreement.
7. Board Seat. S&W will recommend a candidate to observe nVIEW's Board of
Directors' meetings in order to enhance the two firms' ability to
pursue joint efforts. If the candidate is acceptable to nVIEW's Board
of Directors, such candidate shall be invited to all nVIEW Board
meetings. After the Shares are issued to S&W, the candidate shall be
elected to the nVIEW Board as soon as is practicable, and shall be
nominated and recommended for reelection as a Director at the next
nVIEW Annual Shareholders' Meeting. S&W's candidate shall initially
waive all director compensation, associated with services as a
director.
8. Board Approval. The effectiveness of this Agreement shall be subject to
both S&W and nVIEW obtaining approval of this Agreement by the Board of
Directors of nVIEW and the Chief Executive of S&W within twenty (20)
days after execution of this Agreement.
4
9. Entire Understanding. Apart from the Supply Agreement dated December
11, 1997, this Agreement represents the entire understanding between
the parties and supersedes any prior agreement, discussions or
negotiations between the parties.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with English law. The parties agree to submit any disputes
in relation to this Agreement to binding arbitration to agreed rules.
11. Notices. Any notice under this Agreement shall be in writing and may be
served by:
(a) personal delivery; including First Class Mail with receipt
acknowledgment; or
(b) facsimile, with confirmation of receipt
Notices will be delivered to the CEO or CFO of nVIEW at 860 Omni
Boulevard, Newport News, Virginia 23606-4238 OR to the Chief Executive
or Commercial Director of Snell & Wilcox at Durford Mill, Petersfield,
Hampshire GU31 5AZ UK.
Any notice so given shall be deemed to have been received on the next
business day following the date it was hand delivered or transmitted by
facsimile, or if mailed, on the fifth business day following the date
of posting.
Executed the day and date set forth above.
nVIEW Corporation
by:___________________________
Snell & Wilcox
by:____________________________
5
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement ("Agreement") dated as of ______________,
199_, among nVIEW Corporation, a Virginia corporation (the "Company"), and Snell
& Wilcox (the "Holder"), the holder of shares of Common Stock of the Company.
WHEREAS, pursuant to that certain Agreement dated December__, 1997, by
and between the Company and the Holder (the "Issuance Agreement"), the Company
today issued _____ shares of Common Stock to the Holder; and
WHEREAS, the parties hereto hereby desire to set forth the Holder's
rights and the Company's obligations to cause the registration of the Shares
pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the agreement by the Holder to
provide the benefits under the Issuance Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Agreements and Representations of the Company.
1.1. The Company represents and warrants to the Holder that it
has the requisite power and authority to execute, deliver and carry out this
Agreement. This Agreement has been duly and properly executed and delivered by
the Company and constitutes the legally valid and binding obligation of the
Company, enforceable in accordance with its terms.
Section 2. Definitions. As used in this Agreement:
Agent. "Agent" means the principal placement agent on an
agented placement of Shares.
Board. "Board" means the Board of Directors of the Company.
Commission. "Commission" shall mean the Securities and
Exchange Commission.
Common Stock. "Common Stock" shall mean (i) the common stock,
no par value, of the Company, and (ii) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Continuously Effective. "Continuously Effective", with
respect to a specified registration statement, shall mean that it shall not
cease to be effective for longer than either
6
(i) any ten ( 10) consecutive business days, or (ii) an aggregate of fifteen
(15) business days during the period specified in the relevant provision of this
Agreement.
Demand Registration. "Demand Registration" shall have the
meaning set forth in Section 3.1(i).
Exchange Act. "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended and the rules and regulations promulgated
thereunder.
Person. "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or other agency or
political subdivision thereof.
Piggyback Registration. "Piggyback Registration" shall have
the meaning set forth in Section 4.
Securities Act. "Securities Act" shall mean the Securities
Act of 1933, as amended and the rules and regulations promulgated thereunder
Shares. "Shares" shall mean (i) the shares owned by Holder on
the date hereof and (ii)aany shares of Common Stock or other securities issued
as a dividend or other distribution with respect to such Shares; provided,
however, that Shares shall not include any Common Stock which has theretofore
been registered and sold pursuant to the Securities Act or which has been sold
to the public pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act.
Underwriters' Representative. "Underwriters' Representative"
shall mean the managing underwriter, or, in the case of a co-managed
underwriting, the managing underwriter designated as the Underwriters'
Representative by the co-managers.
Section 3. Demand Registration.
3.1. (i) If at any time after the first anniversary of the
date, the Holder makes a written request to the Company, the Company shall cause
there to be filed with the Commission a registration statement meeting the
requirements of the Securities Act (a "Demand Registration"), and Holder shall
be entitled to have included therein all or such number of such Holder's Shares,
as the Holder shall direct in writing; provided, however, that no request may be
made pursuant to this Section 3.1 if within six (6) months prior to the date of
such request a Demand Registration Statement pursuant to this Section 3.1 shall
have been declared effective by the Commission. Any request made pursuant to
this Section 3.1 shall be addressed to the attention of the Secretary of the
Company, and shall specify the number of Shares to be registered, the intended
methods of disposition thereof and that the request is for a Demand Registration
pursuant to this Section 3.1(i). The Holder shall be entitled to no more than
two
7
Demand Registrations.
(ii) The Company shall be entitled to postpone for up to
ninety (90) days the filing of any Demand Registration statement otherwise
required to be prepared and filed pursuant to this Section 3.1, if the Board
determines, in its good faith reasonable judgment (with the concurrence of the
managing underwriter, if any), that such registration would materially interfere
with, or require premature disclosure of, any financing, acquisition or
reorganization involving the Company or any of its wholly owned subsidiaries and
the Company promptly gives the Holder notice of such determination; provided,
however, that the Company shall not have postponed pursuant to this Section
3.1(ii) the filing of any other Demand Registration statement otherwise required
to be prepared and filed pursuant to this Section 3.1 during the twelve (12)
month period ended on the date of the relevant request pursuant to Section
3.1(i).
(iii) In connection with an underwritten offering, the Company
and, with the approval of the Company, other holders of Common Stock shall be
given the opportunity to include shares of Common Stock in such offering ("Other
Included Shares"); provided, however, if the Underwriters' Representative or
Agent advises Holder in writing that, in its opinion, the amount of securities
requested to be included in such offering exceeds the amount which can be sold
in such offering within a price range acceptable to the Holder, securities shall
be included in such offering and the related registration, to the extent of the
amount which can be sold within such price range, first for the account of the
Holder, and second by the Company and other holders with respect to the Other
Included Shares.
3.2. Following receipt of a request for a Demand
Registration, the Company shall:
(i) File the registration statement with the
Commission as promptly as practicable, and shall use the Company's best efforts
to have the registration declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence and complete other
actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the
Demand Registration Statement Continuously Effective for up to ninety (90) days
or until such earlier date as of which all the Shares under the Demand
Registration Statement shall have been disposed of in the manner described in
the Registration Statement, or such earlier time as the Company would not have
an) obligation to include the Shares that have not been disposed of in the
manner described in the Registration Statement in a registration pursuant to
Section 3 or Section 4 pursuant to the definition of "Shares."
3.3. The Company shall be obligated to effect no more than a
total of two Demand Registrations. If the Company shall have complied with its
obligations under this Agreement, a right to a Demand Registration pursuant to
this Section 3 shall be deemed to have
8
been satisfied upon the earlier of the date as of which all of the Shares
included therein shall have been disposed of pursuant to the Registration
Statement, and the date as of which such Demand Registration shall have been
Continuously Effective for a period of ninety (90) days.
3.4. If any registration pursuant to Section 3 involves an
underwritten offering, the Holder shall have the right to select the
underwriters and managers to administer such underwritten offering or the
placement agents for an offering through agents; provided, however, that each
Person so selected shall be reasonably acceptable to the Company.
Section 4. Piggyback Registration
4.1. If at any time the Company proposes to register shares of
Common Stock under the Securities Act in connection with a public offering
solely for cash on Form S-l, S-2 or S-3 (or any replacement or successor forms),
the Company shall promptly give Holder written notice of such registration (a
"Piggyback Registration"). Upon the written request of Holder given within 20
days following the date of such notice, the Company shall cause to be included
in such registration statement and use its best efforts to be registered under
the Securities Act all the Shares that Holder shall have requested to be
registered; provided, however, that such right of inclusion shall not apply to
the registration statement unless the Underwriters' Representative or Agent
expressly consents thereto. Holder shall be entitled to request its Shares be
included in an unlimited number of Piggyback Registrations pursuant to this
Section 4. The Company shall have the absolute right to withdraw or cease to
prepare or file any registration statement for any offering referred to in this
Section 4 without any obligation or liability to Holder.
4.2. If the Underwriters' Representative or Agent advises the
Company that, in its opinion, the amount of Shares requested to be included in
such registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount which the Company is so advised can be sold without such material
adverse effect in such offering: First, all securities proposed to be sold by
the Company for its own account and, if applicable, all securities proposed to
be sold by the holder of securities for which such registration is made, in
accordance with the agreement between the Company and such holder; second, the
Shares requested to be included in such registration by Holder pursuant to this
Section 4, third, all other securities requested to be included in such
registration.
4.3. If the Company has previously filed a registration
statement with respect to the Shares pursuant to Section 3 or pursuant to this
Section 4, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-4, S-8 or any equivalent or successor form), whether on
its own behalf or at the request of any holder or Holder of such securities,
until a period of 180 days has elapsed from the effective date of such a
previous registration, or, if such registration was for an underwritten
offering, such shorter period of days
9
as the Underwriter's Representative or Agent shall have given its consent.
Section 5. Registration Procedures. Whenever required under
Section 3 or Section 4 to effect the registration of any Shares, the Company
shall, as expeditiously as practicable:
5.1. Prepare and file with the Commission a registration
statement with respect to such Shares and use the Company's best efforts to
cause such registration statement to become effective.
5.2. 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 and rules thereunder with respect to the
disposition of all securities covered by such registration statement. The
Company shall amend the registration statement or supplement the prospectus so
that it will remain current and in compliance with the requirements of the
Securities Act for the period after its effective date during which the Demand
Registration is to be kept continuously effective by the Company pursuant to
Section 3.3(ii), and if during such period any event or development occurs as a
result of which the registration statement or prospectus contains a misstatement
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, the Company
shall promptly notify Holder, amend the registration statement or supplement the
prospectus so that it will thereafter comply with the Securities Act and furnish
to Holder such amended or supplemented prospectus, which Holder shall thereafter
use in the sale of Shares covered by such registration statement. Pending such
amendment or supplement, Holder shall cease making offers of Shares pursuant to
the prior prospectus. In the event that any Shares included in a registration
statement subject to, or required by, this Agreement remain unsold at the end of
the period during which the Company is obligated to use its best efforts to
maintain the effectiveness of such registration statement, the Company may file
a post-effective amendment to remove such Shares from registered status.
5.3. Use the Company's best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Underwriters' Representative or Agent; provided,
however, that the Company shall not be required to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
5.4. In the event of any underwritten or agented offering,
enter into and perform the Company s obligations under an underwriting or agency
agreement (including indemnification and contribution obligations of
underwriters or agents)' in usual and customary form. The Company shall also
cooperate with the Holder and the Underwriters' Representative or Agent for such
offering in the marketing of the Shares, including making available the
Company's officers, accountants, counsel, premises, books and records for such
purpose, but the Company shall not be required to incur any material
out-of-pocket expense pursuant to this sentence.
10
5.5. Promptly notify Holder of any stop order issued or
threatened to be issued by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
Section 6. Holder' Obligations. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
with respect to the Shares that Holder shall:
6.1. Furnish to the Company such information regarding Holder,
the number of the Shares owned by it, and the intended method of disposition of
such Shares as shall be required to effect the registration of the Shares, and
to cooperate with the Company in preparing such registration.
6.2. Agree to sell the Shares to the underwriters at the same
price and on substantially the same terms and conditions as the Company or the
other Persons on whose behalf the registration statement was being filed have
agreed to sell their securities, and to execute the underwriting agreement
agreed to by the Holder (in the case of a registration under Section 3), or the
Company and the Holder (in the case of a registration under Section 4).
Section 7. Expenses of Registration. Expenses in connection
with registrations pursuant to this Agreement shall be allocated and paid as
follows:
7.1. With respect to each Demand Registration, the Holder
shall bear and pay all expenses incurred in connection with any registration,
filing, or qualification of Shares with respect to such Demand Registration for
Holder, including all registration, filing and National Association of
Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the reasonable fees and disbursements
of counsel for the Company, and of the Company's independent public accountants,
including the expenses of "cold comfort" letters required by or incident to such
performance and compliance, and the fees and disbursements of counsel for Holder
(the "Fixed Registration Expenses") and the underwriting discounts and
commissions relating to Shares.
7.2. The Company shall bear and pay the Fixed Registration
Expenses incurred in connection with any Piggyback Registrations pursuant to
Section 4, but excluding underwriting discounts and commissions relating to
Shares (which shall be paid on a pro rata basis by the Holder).
Section 8. Indemnification; Contribution. In the event a registration
pursuant to the provision of this Agreement, the Company and the Holder shall
enter into a cross-indemnity and contribution agreement, in customary form, with
each other and each underwriter, if any.
Section 9. Holdback. If so requested by the Underwriters'
Representative or Agent in
11
connection with an offering of any Shares, the Holder shall not effect any
public sale or distribution of Shares, including a sale pursuant to Rule 144
under the Securities Act (except as part of such underwritten or agented
registration), during the 5-day period prior to, and during such period as the
Underwriter's Representative or Agent may request, not to exceed a period of 180
days, beginning on, the date such registration statement is declared effective
under the Securities Act by the Commission. In order to enforce the foregoing
covenant, the Company shall be entitled to impose stop-transfer instructions
with respect to the Shares of Holder until the end of such period.
Section 10. Amendment Modification and Waivers; Further
Assurances.
(i) This Agreement may be amended by a written
document executed by the Holder and the Company.
(ii) No waiver of any terms or conditions of this
Agreement shall operate as a waiver of any other breach of such terms and
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to the contrary, shall be construed to effect a continuing waiver of
the provisions being waived and no such waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all
such further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms and
purposes of this Agreement
Section 11. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by the Company
or the Holder without the prior written consent of the other party hereto.
Section 12. Miscellaneous.
12.1. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia, without
giving regard to the conflict of laws principles thereof.
12.2. Notices. Any notice under this Agreement shall be in
writing and may be served by:
12
(a) personal delivery; including First Class
Mail with receipt acknowledgment; or
(b) facsimile, with confirmation of receipt.
Notices will be delivered to the CEO or CEO of nVIEW
at 860 Omni Boulevard, Newport News, Virginia 23606-4238 OR to the Commercial
Director or CEO of Snell & Wilcox at Durford Mill, Petersfield, Hampshire GU31
5AZ UK.
Any notice so given shall be deemed to have been
received on the next business day following the date it was hand delivered or
transmitted by facsimile, or if mailed, on the fifth business day following the
date of posting.
12.3. Injunctive Relief. Each of the parties hereto
acknowledges that in the event of a breach of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in such event the aggrieved party may elect to
institute and prosecute proceedings to enforce specific performance or to enjoin
the continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
12.4. Section Headings. Section headings are for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
12.5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need not
be on the same counterpart.
12.6. Severability. If any provision of this Agreement shall
be invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity and enforceability of the remaining provisions of this
Agreement, unless the result thereof would be unreasonable, in which case the
parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
12.7. Termination. This Agreement may be terminated at any
time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement shall
terminate in its entirety at the earlier of (i) such date as there shall be no
Shares owned by Holder or (ii ) the eighth anniversary of the date hereof.
12.8. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
12.9. No Third Party Beneficiaries. Nothing herein
expressed or implied is
13
intended to confer upon any person, other than the parties hereto or their
respective permitted assigns, successors, heirs and legal representatives, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
IN WITNESS WHEREOF the undersigned have executed this Registration
Rights Agreement as of the date first written above.
14
EXHIBIT B
nVIEW is a party to an Agreement (the "Signet Agreement") entered by
and between nVIEW and Signet Bank ("Signet") dated February 6, 1996, pursuant to
which Signet provides a line of credit to nVIEW. Currently no funds are
outstanding under the Signet Agreement. The terms of the Signet Agreement
prohibit issuance of shares under this Agreement without Signet's consent.
The Signet Agreement will expire by its own terms on February 6, 1998,
and Signet advised nVIEW it will not continue the Agreement. nVIEW is currently
negotiating a loan with a replacement lender and will provide in such loan
document that nVIEW may fulfill the terms of this Agreement.
15