EXHIBIT NO. 10.1
Exhibit C
Registration Rights
1. Shelf Registration
(a) Shelf Registration. The Company, shall, no sooner than six months
and no later than nine months from the date of this Agreement,
(the "Filing Period"), file with the SEC a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Purchased Stock (as hereinafter defined)
(the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-3 or another appropriate form
permitting registration of such Purchased Stock for resales by
holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Purchased
Stock to be included in any Shelf Registration without the
consent of the holders of Purchased Stock. The Company shall use
its best efforts to keep the Initial Shelf Registration
continuously effective under the Securities Act of 1933, as
amended (the "Securities Act") until the date which is 24 months
from the date of filing (the "Effectiveness Period") or such
shorter period ending when (i) all Purchased Stock covered by the
Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or (ii) a
Subsequent Shelf Registration covering all of the Purchased Stock
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registration. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for
any reasons at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Shelf Registration in a manner to
obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Purchased Stock (a
"Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to
cause the Subsequent, Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such
Subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein, the term "Shelf
Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities
Act, or if reasonably requested by the holders of a majority of
the
Purchased Stock covered by such Shelf Registration or by any
underwriter of such Purchased Stock, in each case, with the
Company's consent, which consent shall not be unreasonably
withheld or delayed.
(d) Redemption Rights. Notwithstanding anything contained herein to
the contrary, if the Company has not filed the Initial Shelf
Registration within the Filing Period and caused it to become
effective during said time period, than the Company shall, upon
request by any of the holders of the Purchased Stock redeem any
or all of the shares of said Purchased Stock (as may be requested
by said holder) at the higher of (i) the Average Market Price (as
said term is defined in the Merger Agreement); or (ii) the
closing price of the Company's common stock as reported by NASDAQ
on the last business day of the Filing Period.
2. Incidental Registration. Each time the Company shall determine to proceed
with the actual preparation and filing of a registration statement under
the Securities Act in connection with the proposed offer and sale for cash
of any of its securities by it or any of its security holders (other than a
registration statement on a form that does not permit the inclusion of
shares by its security holders), the Company will give written notice of
its determination to all record holders of Purchased Stock not theretofore
registered under the Securities Act and sold. Upon the written request of a
record holder of any shares of Purchased Stock given within 30 days after
receipt of any such notice from the Company, the Company will, except as
herein provided, cause all such shares of Purchased Stock, the record
holders of which have so requested registration thereof, to be included in
such registration statement, all to the extent requisite to permit the sale
or other disposition by the prospective seller or sellers of the Purchased
Stock to be so registered; provided, however, that nothing herein shall
prevent the Company from, at any time, abandoning or delaying any such
registration initiated by it. If any registration pursuant to this
paragraph 3 shall be underwritten in whole or in part, the Company may
require that the Purchased Stock requested for inclusion pursuant to this
paragraph 3 be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters.
If in the good faith judgment of the managing underwriter of a proposed
underwritten public offering the inclusion of all of the Purchased Stock
originally covered by a request for registration would reduce the number of
shares to be offered by the Company or interfere with the successful
marketing of the shares of stock offered by the Company, the number of
shares of Purchased Stock otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares) among the
holders thereof requesting such registration, provided, however, that after
any such required reduction the Purchased Stock to be included in such
offering, together with any shares to be included in such offering that are
being offered by other selling shareholders, shall constitute at least 25%
of the total number of shares to be included in such offering. Those shares
of Purchased Stock which are thus excluded from the underwritten public
offering shall be withheld from the market by the holders thereof for a
period, not to exceed 90 days, which
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the managing underwriter reasonably determines if necessary in order to
effect the underwritten public offering.
3. Registration Procedures. If and whenever the Company is required by the
provisions of paragraph 1, 2 or 3 hereof to effect the registration of
shares of Purchased Stock under the Securities Act, the Company will:
(a) prepare and file with the Commission a registration statement with
respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective for such period
as may be reasonably necessary to effect the sale of such securities,
not to exceed (i) twenty-four months in the case of the Shelf
Registration specified in Section 1 and (ii) nine months with respect
to a registration statement not covered by Section 1;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained
therein as may be necessary to keep such registration statement
effective for such period as may be reasonably necessary to effect the
sale of such securities, not to exceed (i) twenty-four months in the
case of the Shelf Registration specified in Section 1 and (ii) nine
months with respect to a registration statement not covered by Section
1;
(c) furnish to the security holders participating in such registration and
to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such
underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under such state securities or blue sky
laws of such jurisdictions as such participating holders may
reasonably request in writing within 20 days following the original
filing of such registration statement, except that the Company shall
not for any purpose be required to execute a general consent to
service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified.
(e) notify the security holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been
filed;
(f) notify such holders promptly of any request by the Commission for the
amending or supplementing of such registration statement or prospectus
or for additional information;
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(g) prepare and file with the Commission, promptly upon the request of any
such holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such
holders (and concurred in by counsel for the Company), is required
under the Securities Act or the rules and regulations thereunder in
connection with the distribution of the Purchased Stock by such
holder;
(h) prepare and promptly file with the Commission and promptly notify such
holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities
Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(i) advise such holders, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for the purpose and
promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
(j) use its best efforts to have the Purchased Stock listed on the Nasdaq
Stock Market or such other of the principal market or principal
exchange on which the Company's stock is then listed or quoted.
4. Expenses. With respect to each registration, the Company shall bear all
fees, costs and expenses including, without limitation, all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel
and accountants for the Company, fees and disbursements of counsel for the
underwriter or underwriters of such securities (if the Company and/or
selling security holders are required to bear such fees and disbursements),
all internal Company expenses, all legal fees and disbursements and other
expenses of complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified, and the premiums and other costs of policies of insurance
against liability (if any) arising out of such public offering and
underwriting discounts and commissions and transfer taxes relating to the
shares included in the offering by the selling security holders.
5. Indemnification. In the event that any Purchased Stock is included in a
registration statement under paragraph 1, 2 or 3 hereof:
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(a) The Company will indemnify and hold harmless each holder of shares of
Purchased Stock which are included in a registration statement
pursuant to the provisions of paragraph 1, 2 or 3 hereof, its
directors and officers, and any underwriter (as defined in the
Securities Act) for such holder and each person, if any, who controls
such holder or such underwriter within the meaning of the Securities
Act, from and against, and will reimburse such holder and each such
underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which such holder or any such
underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein 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;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, damage, liability, cost or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity
with information furnished by such holder, such underwriter or such
controlling person in writing specifically for use in the preparation
thereof
(b) Each holder of shares of Purchased Stock which are included in a
registration pursuant to the provisions of this paragraph 1, 2 or 3
hereof will indemnify and hold harmless the Company, its directors and
officers, any controlling person or any underwriter from and against,
and will reimburse the Company, its directors and officers, any
controlling person and any underwriter with respect to, any and all
loss, damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged
untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein 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, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written
information furnished by such holder specifically for use in the
preparation thereof. Notwithstanding the foregoing, each holder's
liability for indemnification shall be limited to the amount of the
holder's original purchase price of the Purchased Stock.
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(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) and (b) of this paragraph 6 of notice of
the commencement of any action involving the subject matter of the
foregoing indemnity provisions such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of said paragraph (a) or (b), promptly notify the
indemnifying party of the commencement thereof; but the omission to so
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, provided, however, if the
defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, or if there is a conflict
of interest which would prevent counsel for the indemnifying party
from also representing the indemnified party, the indemnified party or
parties shall have the right to select separate counsel to participate
in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party
pursuant to the provisions of said paragraph (a) or (b) for any legal
or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the proviso of the preceding sentence, (ii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
6. Special Definition. "Purchased Stock" shall mean the Company's Common Stock
acquired pursuant to the Merger Agreement dated October 30, 1998 and the
stock or other securities of the Company issued in a stock split or
reclassification of, or a stock dividend or other distribution on or in
substitution or exchange for, or otherwise in connection with, any of the
foregoing securities, or in a merger or consolidation involving the Company
or a sale of all or substantially all of the Company's assets.
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