REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of February 1, 1996 (this
"Agreement"), is made between EDITEK, Inc., a corporation organized under the
laws of Delaware (the "Company"), and Harry McCoy (the "Investor").
W I T N E S S E T H:
WHEREAS, the Investor is purchasing 235,295 shares (the "Shares") of
Common Stock of the Company; and
WHEREAS, the Company is agreeing to provide certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
Act"), and applicable state securities laws with respect to the Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Investor hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall
have the following meanings:
(i) "Register," "registered," and "registration"
refer to a registration effected by preparing and filing a Registration
Statement or Statements in compliance with the Securities Act on such
appropriate registration form promulgated by the Commission as shall be selected
by the Company and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
("SEC") and applicable state laws.
(ii) "Registrable Securities" means the Shares.
(iii) "Registration Statement" means a registration
statement under the Securities Act registering securities of the Company.
2. Registration.
(a) Piggy-Back Registrations. Subject to the provisions of
Sections 3 and 4 hereof, if at any time the Company shall determine to prepare
and file with the SEC a
Registration Statement relating to an offering under the Securities Act of any
of its equity securities for its own account or the account of others, other
than on Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, the Company shall send to the Investor who owns
Registrable Securities written notice of such determination and, if within
twenty (20) days after receipt of such notice, the Investor shall so request in
writing, the Company shall include in such Registration Statement all or any
part of the Investor's Registrable Securities that the Investor requests to be
registered, except that if, in connection with any underwritten public offering
for the account of the Company the managing underwriter(s) thereof shall impose
a limitation on the number of shares of Common Stock which may be included in
the Registration Statement because, in such underwriter(s)' judgment, such
limitation is necessary to effect an orderly public distribution, then the
Company shall be obligated to include in such Registration Statement only such
limited portion, if any, of the Registrable Securities with respect to which the
Investor has requested inclusion hereunder. Any exclusion of Registrable
Securities and other securities having registration rights shall be made pro
rata among the Investor and other shareholders seeking to include Registrable
Securities and other securities having registration rights and in proportion to
the number of Registrable Securities and other securities having registration
rights sought to be included in such registration; provided, however, that the
Company shall not exclude any Registrable Securities unless the Company has
first excluded all outstanding securities the holders of which are not entitled
to inclusion of securities in such Registration Statement. No right to
registration of Registrable Securities under this Section 2(a) shall be
construed to limit any registration required under Section 2(b) hereof. The
obligations of the Company under this Section 2(a) shall terminate upon the
earlier of (i) February 1, 1999 or (ii) after the Company has afforded the
opportunity for the Investor to exercise registration rights under this Section
2(a) for two registrations; provided, however, that if the Investor has any
Registrable Securities excluded from any Registration Statement in accordance
with this Section 2(a), the Investor shall be entitled to include in an
additional Registration Statement filed by the Company the Registrable
Securities so excluded.
(b) Immediate Registration. Subject to the provisions of
Sections 3 and 4 hereof, the Company shall prepare and file a Registration
Statement with the SEC within fifteen (15) business days after the date hereof;
provided, however, that such registration statement need not be filed until five
(5) business days after the Investor has provided the Company with all
information reasonably requested by the Company in connection with such
registration.
(c) If any registration is underwritten, the Investor shall
pay all underwriting discounts and commissions with respect to the Registrable
Securities of the Investor included therein and the fees and expenses of legal
counsel of the Investor.
2
(d) Nothing herein shall limit the right of the Company to
grant registration rights to any other person or entity and to include shares of
such person or entity on any Registration Statement.
3. Obligations of the Company. In connection with the registration of
the Registrable Securities under this Agreement, the Company shall:
(a) prepare promptly and file with the SEC promptly (but in no
event later than 15 business days after the Closing Date of the transactions
contemplated by the Purchase Agreement) a Registration Statement or Statements
with respect to all Registrable Securities to be included therein, and
thereafter use its best efforts to cause the Registration Statement to become
effective as soon as reasonably possible after such filing. If such Registration
Statement is filed pursuant to Rule 415, the Company shall keep the Registration
Statement effective pursuant to Rule 415 at all times until such date as is two
years after the date such Registration Statement is first ordered effective by
the SEC. In any case, the Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
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;
provided, however, that, subject to the conditions set forth in Section 4(a)
below, the Investor may notify the Company in writing that it wishes to exclude
all or a portion of its Registrable Securities from such Registration Statement.
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times until such
date as is two years after the date such Registration Statement is first ordered
effective by the SEC, and, during such period, comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statement until such time as all of such
Registrable Securities have been disposed of by the Investor in accordance with
the intended methods of disposition by the Investor as set forth in the
Registration Statement.
(c) furnish to the Investor whose Registrable Securities are
included in the Registration Statement, such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
promptly upon approval thereof by the SEC and such other documents as the
Investor may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the Investor; The Company shall provide copies
of all such documents upon approval thereof by the SEC to counsel for the
Initial Investor at such address designated in writing by the Initial Investor;
(d) (i) register or qualify, or obtain exemption from
registration or qualification for, the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as required for sale of the Registrable
3
Securities by the Investor as the Investor reasonably requests, (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements, (iii) take such other actions as may be necessary
to maintain such registrations or qualifications in effect at all times until
February 1, 1998 and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions
or to otherwise permit the Holders to dispose of the Registrable Securities;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (I) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (II) subject itself to general taxation in any such jurisdiction,
(III) file a general consent to service of process in any such jurisdiction,
(IV) make any change in its charter or by-laws, which in each case the Board of
Directors of the Company determines to be contrary to the best interests of the
Company and its stockholders or (V) subject any officer, director or shareholder
to any penalty or risk of forfeiture other than those penalties and risks to
which officers and directors are ordinarily liable in a public offering of
securities;
(e) in the event the Investor shall select one or more
underwriters for the offering, or an underwritten public offering is conducted
pursuant to Section 2(a) hereof, enter into and perform its obligations under an
underwriting agreement in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering;
(f) as promptly as practicable after becoming aware of such
event, notify the Investor if the Investor continues to hold Registrable
Securities being sold pursuant to such registration of the happening of any
event of which the Company has knowledge, as a result of which the prospectus
included in the Registration Statement, as then in effect, contains 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, in light of the
circumstances under which they were made, not misleading, and use its best
efforts promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, and deliver a number of
copies of such supplement or amendment to the Investor as the Investor may
reasonably request;
(g) as promptly as practicable after becoming aware of such
event, notify the Investor if the Investor continues to hold Registrable
Securities being sold pursuant to such registration (or, in the event of an
underwritten offering, the managing underwriters) of the issuance by the SEC of
any stop order or other suspension of effectiveness of the Registration
Statement at the earliest possible time;
(h) furnish on the date that Registrable Securities are
delivered to an underwriter for sale in connection with the Registration
Statement (i) a letter, dated such date, from the Company's independent
certified public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwriter
public offering, addressed to the underwriters; and (ii) an opinion, dated such
4
date, from counsel representing the Company for purposes of such Registration
Statement, in form and substance as is customarily given in an underwritten
public offering, addressed to the underwriters and the Investor;
(i) use its best efforts either to (i) cause all the
Registrable Securities covered by the Registration Statement to be listed on the
American Stock Exchange or another national securities exchange and on each
additional national securities exchange on which similar securities issued by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or (ii) secure
designation of all the Registrable Securities covered by the Registration
Statement as a National Association of Securities Dealers Automated Quotations
System ("NASDAQ") "national market system security" within the meaning of Rule
11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the quotation of the Registrable Securities on the NASDAQ
National Market System or, if, despite the Company's best efforts to satisfy the
preceding clause (i) or (ii), the Company is unsuccessful in satisfying the
preceding clause (i) or (ii), to secure listing on a national securities
exchange or NASDAQ authorization and quotation for such Registrable Securities;
(j) provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities not later than the effective date
of the Registration Statement;
(k) cooperate with the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of certificates to the
transferees to whom such Registrable Securities are being sold (not bearing any
restrictive legends) pursuant to the denominations or amounts as the case may
be, and registered, in such names as the managing underwriter or underwriters,
if any, or the Investor may reasonably request; and, within three business days
after a Registration Statement which includes Registrable Securities is ordered
effective by the SEC, the Company shall deliver, or shall cause legal counsel
selected by the Company to deliver, to the transfer agent for the Registrable
Securities (with copies to the Investor whose Registrable Securities are being
sold) instructions to the transfer agent to issue new stock certificates without
a legend to such transferees and an opinion of such counsel that the shares have
been registered; and
(l) take all other reasonable actions necessary to expedite
and facilitate disposition by the Investor of the Registrable Securities
pursuant to the Registration Statement.
(m) Notwithstanding the foregoing, the Company's obligations
in connection with the registration of Registrable Securities shall be limited
as follows:
(i) The Company shall not be obligated under this
Agreement to register or include in any registration Registrable Securities that
the Investor has requested to be registered if the Company shall furnish the
Investor with a written opinion of counsel reasonably satisfactory to the
Investor, that all Registrable Securities that the Investor holds
5
may be publicly offered, sold or distributed without registration under the Act
pursuant to Rule 144 without restriction as to the amount of securities that can
be sold.
(ii) The Company's obligation to amend, supplement
and cause to continue to be effective any registration statement may be
suspended, for a reasonable period of time, not to exceed 45 days, if the
Company has been advised in writing by independent legal counsel that such
filing would require the disclosure of a material transaction or other facts and
the Board of Directors of the Company determines reasonably and in good faith
that such disclosure would have a material, adverse effect on the Company;
provided, however, that the Company shall not under any circumstances be
permitted to exercise such rights more than two (2) times in any twelve (12)
month period. The Company shall immediately notify in writing the Investor if
the Investor continues to hold Registrable Securities covered by such
registration statement of such determination, and the Investor shall maintain
the confidentiality of such notice and shall cease all trading in the securities
of the Company until the Company notifies the Investor in writing that the
circumstances that caused such suspension or postponement are no longer present
and that the Registration Statement is currently effective. The Company shall
use its best efforts to promptly take all such actions necessary to eliminate
any such suspension or postponement as soon as reasonably possible.
(iii) The Company may in its discretion grant to any
owner of securities of the Company registration rights of any kind or nature.
4. Obligations of the Investor. In connection with the registration of
the Registrable Securities, the Investor shall have the following obligations:
(a) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement with respect to the
Investor that the Investor furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the registration of the Registrable Securities and execute
such documents in connection with such registration as the Company may
reasonably request. At least fifteen (15) days prior to the first anticipated
filing date of the Registration Statement, the Company shall notify the Investor
of the information the Company requires from the Investor (the "Requested
Information") if the Investor elects to have any of the Investor's Registrable
Securities included in the Registration Statement. If within five (5) business
days prior to the filing date the Company has not received a signed writing
containing the Requested Information from the Investor (the "Non-Responsive
Investor"), then the Company may file the Registration Statement without
including Registrable Securities of the NonResponsive Investor;
(b) The Investor by the Investor's acceptance of the
Registrable Securities agrees to cooperate with the Company as reasonably
requested by the Company in connection
6
with the preparation and filing of the Registration Statement hereunder, unless
the Investor has notified the Company in writing of the Investor's election to
exclude all of the Investor's Registrable Securities from the Registration
Statement;
(c) In the event the Company or the holders of securities
being registered determine to engage the services of an underwriter in
accordance with Section 2(b) hereof, or in connection with any underwritten
public offering pursuant to Section 2(a) hereof, the Investor agrees to enter
into and perform the Investor's obligations under an underwriting agreement, in
usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of the Registrable Securities, unless the
Investor has notified the Company in writing of the Investor's election to
exclude all of the Investor's Registrable Securities from the Registration
Statement, and the Company shall have no obligation to register the Registrable
Securities if the Investor fails to comply with this paragraph;
(d) The Investor agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 3(f)
and 3(g), the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until the Investor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(f) or 3(g) and, if so directed by
the Company, the Investor shall, at the option of the Investor, either (i)
deliver to the Company or (ii) destroy (and deliver to the Company a certificate
of destruction) all copies in the Investor's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice; and
(e) The Investor may not participate and the Company shall
have no obligation to register the Registrable Securities of the Investor in any
underwritten registration hereunder unless the Investor (i) agrees to sell the
Investor's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Investor entitled hereunder to approve such
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and (iii) agrees to
pay its pro rata share of all underwriting discounts and commissions applicable
with respect to its Registrable Securities, in each case to the extent not
payable by the Company pursuant to the terms of this Agreement.
5. Expenses of Registration. All expenses (other than underwriting
discounts and commissions or brokerage commissions) incurred in connection with
registrations, filings or qualifications pursuant to Section 3, including,
without limitation, all registration, listing and qualifications fees, printers'
and accounting fees and the fees and disbursements of counsel for the Company,
shall be borne by the Company; provided, however, that the Investor shall bear
the fees and out-of-pocket expenses of any legal counsel of the Investor.
7
6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Investor who holds such Registrable Securities, any
underwriter (as defined in the Securities Act) for the Investor, the directors,
if any, of any underwriter and the officers, if any, of such underwriter, and
each person, if any, who controls any such underwriter within the meaning of the
Securities Act or the Exchange Act (each, an "Indemnified Person"), against any
losses, claims, damages, expenses or liabilities (joint or several)
(collectively "Claims") to which any of them become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any of the following statements, omissions or violations in
the Registration Statement, or any post-effective amendment thereof, or any
prospectus included therein: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereof or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used
prior to the effective date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act or any state securities law or any rule
or regulation (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(d) with respect to the number of legal counsel, the Company shall reimburse
the Investor and each such underwriter or controlling person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) (I) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement, preliminary prospectus, final prospectus or any amendments thereof or
supplements thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(c) hereof; (II) with respect to any preliminary prospectus
shall not inure to the benefit of any such person from whom the person asserting
any such Claim purchased the Registrable Securities that are the subject thereof
(or to the benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected in the prospectus, as then amended or supplemented, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; and (III) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior
8
written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Persons.
(b) In connection with any Registration Statement in which the
Investor is participating, the Investor agrees to indemnify and hold harmless,
to the same extent and in the same manner set forth in Section 6(a), the
Company, each of its directors, each of its officers who signs the Registration
Statement, each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement of any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act
(collectively and together with an Indemnified person, an "Indemnified Party"),
against any Claims to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claims(s) arises out of or
is based upon any Violation(s), in each case to the extent (and only to the
extent) that such Violation(s) occurs in reliance upon and in conformity with
written information furnished to the Company by the Investor expressly for use
in connection with such Registration Statement; and the Investor will promptly
reimburse any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Claim; provided, however, that the
Investor shall be liable under this Section 6(b) for only that amount of a Claim
as does not exceed the net proceeds to the Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investor pursuant to Section 9. Notwithstanding
anything to the contrary herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
(c) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in any distribution, to the same extent as provided
above, with respect to information such persons so furnished in writing by such
persons expressly for inclusion in the Registration Statement.
(d) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof 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
control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties; provided,
9
however, that an Indemnified Person or Indemnified Party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person
or Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and indemnifying party in such proceeding. The Company shall
pay for only one separate legal counsel for the Investor as may become
Indemnified Parties or Indemnified Persons; such legal counsel shall be selected
by the Investor holding a majority in interest of the Registrable Securities.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
(e) Any Holder required to indemnify the Company as provided
in this Section 6 shall cease to have the right to participate in any other
registration pursuant to this Agreement.
7. Contribution. To the extent any indemnification provided for herein
is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that (a) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6, (b) no Holder of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Holder of Registrable
Securities who was not guilty of such fraudulent misrepresentation and (c)
contribution by any Holder of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such Holder from the sale of such
Registrable Securities.
8. Reports under Exchange Act. With a view to making available to the
Investor the benefits of Rule 144 or any other similar rule or regulation of the
SEC that may at any time permit the Investor to sell securities of the Company
to the public without registration, until such time as the Investor has sold all
the Registrable Securities held by the Investor pursuant to a Registration
Statement or Rule 144 or otherwise, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
10
(c) furnish to the Investor so long as the Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company and (iii) such other information as may be reasonably requested to
permit the Investor to sell such securities pursuant to Rule 144 without
registration.
9. Assignment of the Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement may not be assigned
by the Initial Investor without the prior written consent of the Company.
10. Amendment of Registration 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 the Company and the Investor. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon the Investor
and the Company.
11. Miscellaneous.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall
be in writing (including facsimile) and shall be deemed to be sufficiently given
and delivered when personally delivered, faxed (with a copy sent by first class
mail) or when sent by registered mail, return receipt requested, addressed (i)
if to the Company, at EDITEK, Inc., 1238 Anthony Road, Burlington, North
Carolina 27215, Attention: Peter J. Heath, Chief Financial Officer, (ii) if to
the Investor, at the address set forth on the signature page to this Agreement
and or at such other address as each such party furnishes by notice given in
accordance with this Section 11(b), and shall be effective, when personally
delivered, upon receipt, when faxed, the day after transmission, and when so
sent by certified mail, four business days after deposit with the United States
Postal Service.
(c) Failure of any party to exercise any right or remedy under
this Agreement, or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be enforced, governed by and
construed in accordance with the laws of the State of New York applicable to the
agreements made and to
11
be performed entirely within such state. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
(e) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may required.
(h) The headings in the Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of day and
year first above written.
EDITEK, INC. INVESTOR:
By: /s/ James D. Skinner /s/ Harry G. McCoy
Title: President and CEO Harry McCoy
402 West County Road D
(Address For Notices)
St. Paul, MN 55112
12