Exhibit 10.8
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 to Registration Rights Agreement ("Amendment") is
entered into as of this 18th day of September, 1998, by and among Imaging
Technologies Corporation, a Delaware corporation (the "Company"), and the
undersigned entities (each of which is herein referred to individually as an
"Investor" and all of which are herein referred to collectively as the
"Investors"). Capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Registration Rights Agreement dated as of August
21, 1997, among the Company and the Investors (the "Agreement"):
R E C I T A L S:
WHEREAS, the Company and the Investors entered into the Agreement in
connection with the purchase by the Investors of an aggregate of 500 shares of
the Company's Series C Redeemable Convertible Preferred Stock, par value $1,000
per share (the "Series C Preferred Stock") pursuant to a Securities Purchase
Agreement, dated as of August 21, 1997 among the Company and the Investors (the
"Purchase Agreement");
WHEREAS, certain disputes have arisen between the Company and certain
of the Investors with respect to the Company's right to redeem all shares of
Series C Preferred Stock tendered for conversion in lieu of converting such
shares;
WHEREAS, the terms under which the Company and these Investors have
agreed to settle all of their disputes, as well as the terms regarding other
matters to which all of the other Investors have agreed, are set forth in a
Settlement and Mutual Release Agreement dated as of the date hereof between the
Company and the Investors (the "Settlement Agreement");
WHEREAS, as part of the settlement contemplated by the Settlement
Agreement, the Company has agreed to issue to two of the Investors, Xxxxxx
Partners ("Xxxxxx") and Olympus Securities, Ltd. ("Olympus"), warrants (the
"Settlement Warrants") to purchase up to an aggregate of 100,000 shares of the
Company's Common Stock, par value $0.005 per share (the "Common Stock");
WHEREAS, as part of the settlement contemplated by the Settlement
Agreement, the Company has agreed to issue to Xxxxxx and Olympus non-convertible
subordinated promissory notes and warrants (together with the Settlement
Warrants, the "New Warrants") to purchase up to an aggregate of 200,000 shares
of the Company's Common Stock, par value $0.005 per share (the "Common Stock");
and
WHEREAS, in connection with the closing of the settlement contemplated
by the Settlement Agreement, the Company has agreed to grant certain
registration rights to Xxxxxx and Olympus with respect to the shares of Common
Stock issuable upon exercise of the New Warrants (the "New Warrant Shares"), and
the Company and the Investors have each agreed to amend and restate certain
provisions of the Agreement, all as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and sufficient consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Amendments to Agreement.
1.1 SECTION 1(d). Section 1(d) of the Agreement is amended and restated in
its entirety to read as follows:
"d. "REGISTRABLE SECURITIES" means the Conversion Shares issued
or issuable upon conversion of the Preferred Shares, the Warrant Shares
issued or issuable upon exercise of the Warrants and the New Warrant Shares
(as defined in the Amendment No. 1 to Registration Rights Agreement dated
September 18, 1998, among the Company and the Investors) issued or issuable
upon exercise of the New Warrants (as defined in the Amendment No. 1 to
Registration Rights Agreement dated September 18, 1998, among the Company
and the Investors), and any shares of capital stock issued or issuable with
respect to the Conversion Shares, the Warrant Shares, the New Warrant
Shares, the New Warrants, the Warrants or the Preferred Shares as a result
of any stock split, stock dividend, recapitalization, exchange or similar
event or otherwise."
1.2 SECTION 2(f). A new Section 2(f) is hereby added to the Agreement as
follows:
"f. REGISTRATION OF CERTAIN REGISTRABLE SECURITIES. If at any
time prior to the expiration of the Registration Period the Company
proposes to file with the SEC a Registration Statement relating to an
offering for the account of others under the 1933 Act of any of its
securities, the Company shall promptly send to NP Partners, formerly known
as Xxxxxx Partners ("Xxxxxx"), and Olympus Securities, Ltd. ("Olympus")
written notice of the Company's intention to file a Registration Statement
and of Xxxxxx'x and Olympus' rights under this Section 2(f) and, if within
twenty (20) days after receipt of such notice, Xxxxxx and/or Olympus shall
so request in writing, the Company shall include in such Registration
Statement all or any part of the New Warrant Shares and any shares of
capital stock issued or issuable with respect to the New Warrant Shares or
the New Warrants as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise (collectively, the
"New Warrant Registrable Securities") Xxxxxx and/or Olympus requests to be
registered. In the event the Company has not filed a shelf Registration
Statement pursuant to Rule 415 under the 1933 Act relating to an offering
for the account of others, which is not underwritten, under the 1933 Act of
any of its securities on or before September 17, 2000 (the "Filing
Deadline"), the Company shall prepare and, on or prior to the Filing
Deadline, file with the SEC a Registration Statement on Form S-3 (or, if
such form is unavailable for such registration, on such other form as is
available for such registration, subject to the consent of the Investors
holding a majority of the New Warrant Registrable Securities, which consent
will not be unreasonably withheld), covering the resale of all of the New
Warrant Registrable Securities. The Company shall use its best efforts to
have the Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than 90 days after the Filing Deadline.
The obligations of the Company under this Section 2(f) may be waived by
Investors holding a majority of the New Warrant Registrable Securities. If
an
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offering in connection with which Xxxxxx or Olympus is entitled to
registration under this Section 2(f) is an underwritten offering, then
Xxxxxx and/or Olympus shall, if they are participating in the offering and
unless otherwise agreed by the Company, offer and sell such New Warrant
Registrable Securities in an underwritten offering using the same
underwriter or underwriters and, subject to the provisions of this
Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering. The Company shall have no
obligation under this Section 2(f) to include any of the New Warrant
Registrable Securities in any Registration Statement relating to an
offering for its own account of any of its securities, nor shall the
Company have any obligation to include any of the New Warrant Registrable
Securities in the Registration Statement filed pursuant to Section 2(a) of
this Agreement (Registration No. 333-37245).
1.3 SECTION 3(a). Section 3(a) of the Agreement is amended and restated in
its entirety to read as follows:
"a. The Company shall promptly prepare and file with the SEC a
Registration Statement with respect to the Registrable Securities (on or
prior to the forty-fifth (45th) day after the date of issuance of any
Preferred Shares for the registration of Registrable Securities pursuant to
Section 2(a)) and use its best efforts to cause such Registration Statement
relating to the Registrable Securities to become effective as soon as
possible after such filing (but in no event later than 150 days after the
issuance of any Preferred Shares for the registration of Registrable
Securities pursuant to Section 2(a)), and keep such Registration Statement
effective pursuant to Rule 415 at all times until the earlier of (i) the
date as of which the Investors may sell all of the Registrable Securities
without restriction pursuant to Rule 144(k) promulgated under the 1933 Act
(or successor thereto) or (ii) the date on which (A) the Investors shall
have sold all the Registrable Securities and (B) none of the Preferred
Shares, Warrants or New Warrants is outstanding (the "Registration
Period"), which Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading."
1.4 SECTION 9. Section 9 of the Agreement is amended and restated in its
entirety to read as follows:
"9. ASSIGNMENT OF REGISTRATION RIGHTS.
The Rights under this Agreement shall be automatically
assignable by the Investors to any transferee of not less than 50,000
Registrable Securities if: (i) the Investor agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after such assignment;
(ii) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of (a) the name and address of
such transferee or assignee, and (b) the securities with respect to which
such registration rights are being transferred or assigned; (iii)
immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the
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1933 Act and applicable state securities laws; (iv) at or before the time
the Company receives the written notice contemplated by clause (ii) of this
sentence the transferee or assignee agrees in writing with the Company to
be bound by all of the provisions contained herein; and (v) such transferee
shall be an "accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated under the 1933 Act."
1.5 SECTION 11(b). Section 11(b) of the Agreement is amended and restated
in its entirety to read as follows:
"b. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be
in writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided a
confirmation of transmission is mechanically or electronically generated
and kept on file by the sending party); (iii) three (3) days after being
sent by U.S. certified mail, return receipt requested; or (iv) one (1) day
after deposit with a nationally recognized overnight delivery service, in
each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
Imaging Technologies Corporation
00000 Xxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: President
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
If to a Buyer, to its address and facsimile number on the
Schedule of Buyers attached hereto, with copies to such Buyer's
counsel as set forth on the Schedule of Buyers.
Each party shall provide five (5) days prior notice to the other party of
any changes in address, phone number or facsimile number."
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1.6 DELETED SECTIONS. The following Sections of the Agreement are hereby
deleted in their entirety: Section 2(b), Section 2(c), Section 2(d), Section
3(e), Section 3(i), Section 4(c) and Section 4(e).
2. MISCELLANEOUS.
2.1 EFFECT OF AMENDMENT; CONFLICTS. Except as specifically amended by this
Amendment, the Agreement as previously executed remains in full force and
effect. In the event of any conflict between the terms of the Agreement and the
terms of this Amendment, the terms of this Amendment shall govern and control.
2.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.3 ENTIRE AGREEMENT. This Amendment, together with the Agreement,
constitutes the full and entire understanding and agreement among the parties
hereto with regard to the subject hereof and thereof.
2.4 SEVERABILITY. If any provision of this Amendment shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Amendment in that
jurisdiction or the validity or enforceability of any provision of this
Amendment in any other jurisdiction.
2.5 NO STRICT CONSTRUCTION. This Amendment is the result of arms-length
negotiations between the parties hereto and has been prepared jointly by the
parties. In applying and interpreting the provisions of this Amendment, there
shall be no presumption that the Amendment was prepared by any one party or that
the Amendment shall be construed in favor of or against any one party.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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This Amendment No. 1 to Registration Rights Agreement has been executed
effective as of the date first written above.
IMAGING TECHNOLOGIES CORPORATION
By: /S/ XXXXX XXXXX
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Xxxxx Xxxxx, President and
Chief Executive Officer
INVESTORS:
NP PARTNERS, formerly known as Xxxxxx Partners
By: /S/ ILLEGIBLE
-----------------------
Title: AUTHORIZED SIGNATORY
OLYMPUS SECURITIES, LTD.
By: /S/ ILLEGIBLE
-----------------------
Title: AUTHORIZED SIGNATORY
RAMIUS FUND, LTD.
By: /S/ XXXXXXX X. XXXXXX
-------------------------
Title: MANAGING OFFICER
RAPHAEL, L.P.
By: /S/ XXXXXXX X. XXXXXX
-----------------------
Title: CHIEF OPERATING OFFICER
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT]
XXXXXXXX, L.P.
By: /S/ XXXXXXX X. XXXXXX
-----------------------
Its: CHIEF OPERATING OFFICER
GAM ARBITRAGE INVESTMENTS, INC.
By: /S/ XXXXXXX X. XXXXXX
-----------------------
Its: CHIEF OPERATING OFFICER
AG SUPER FUND INTERNATIONAL PARTNERS, L.P.
By: /S/ XXXXXXX X. XXXXXX
-----------------------
Its: CHIEF OPERATING OFFICER
HICK INVESTMENTS, LTD.
By: /S/ XXXXXXX X. XXXXXX
-----------------------
Its: MANAGING OFFICER
THEMIS PARTNERS L.P.
By: /S/ ILLEGIBLE
-----------------------
Its:
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT]
HERACLES FUND
By: /S/ ILLEGIBLE
-----------------------
Its:
SAMYANG MERCHANT BANK
By: /S/ ILLEGIBLE
-----------------------
Its:
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT]
