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EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 17th day of July 1997 by and among
eMerge Vision Systems, Inc., a Delaware corporation (the "Company"), and
the stockholders of the Company listed on Schedule I hereto (collectively, the
"Stockholders").
BACKGROUND
The Stockholders are acquiring contemporaneously with the execution of
this Agreement newly issued shares of the Company's Series A Preferred Stock,
which are convertible into shares of the Company's Common Stock. The Company has
agreed to provide the registration rights provided for in this Agreement as an
inducement for the Stockholders to purchase the Series A Preferred Stock.
WITNESSETH:
The parties hereto, each intending to be legally bound and in exchange
for the mutual covenants herein, agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the earlier of three
years after the date hereof or six months after the Company's initial public
offering, Stockholders holding and/or having the right to acquire at least
1,000,000 Registrable Securities (defined below) subject to adjustment for stock
splits, stock dividends, stock combinations and transactions with similar
effect, may demand registration (a "Demand Registration") under the Securities
Act of 1933, as amended (the "1933 Act"), of all or any portion of the
Registrable Securities owned by such Stockholders. In order to accomplish such
demand, a Stockholder shall send written notice of the demand to the Company,
and such notice shall specify the number of Registrable Securities sought to be
registered. The Company shall only be required to effect two Demand
Registrations, and shall only be required to proceed with a Demand Registration
requested by a Stockholder if the number of Registrable Securities that the
Stockholder(s) shall have elected to include in such Demand Registration
pursuant to this Section 1 has an aggregate fair market value, in the opinion of
an investment banker acceptable to the Stockholder(s) requesting the Demand
Registration and to the Company, in excess of $5 million.
(b) Procedure. Within 10 days after receipt of such a demand, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and will include in such registration, subject
to the allocation provisions below, all other Registrable Securities with
respect to which the Company has received written requests for inclusion within
15 days after the Company's mailing of such notice, plus any securities of the
Company that the Company chooses to include on its own behalf.
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(c) Expenses. In a Demand Registration, the Company will pay the
Registration Expenses (defined below), but the Underwriting Commissions (defined
below) will be shared by the Company and those holders of Registrable Securities
whose Registrable Securities are included in the Demand Registration in
proportion to any securities included on their behalf.
(d) Priority on Demand Registrations. If a Demand Registration is
underwritten and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will include in such Demand Registration (i)
first, the Registrable Securities requested to be included in such Demand
Registration by the Stockholders, pro rata on the basis of the number of
Registrable Securities owned; (ii) second, any securities that the Company
desires to include on its own behalf; and (iii) third, any shares of Common
Stock held by any other stockholder of the Company to whom registration is
offered; provided, however, that if a Demand Registration would cause an Initial
Public Offering, the Company would be entitled to include for registration on
its own behalf securities representing up to 30% of the Fully-Diluted Common
Stock as of immediately prior to the Initial Public Offering. A registration
shall not be considered to be a Demand Registration under Section 1(a), and the
Company shall pay the Registration Expenses of such registration, if (i) as a
result of the foregoing allocation, the Stockholders are not able to register
and sell in the Demand Registration at least 75% of the Registrable Securities
sought to be included in the Demand Registration by the Stockholders; (ii) the
gross proceeds of the securities included in the registration on behalf of the
Company constitute at least 20% of the total gross proceeds of the Demand
Registration; or (iii) the registration statement requested by a Stockholder
does not become effective for any reason.
(e) Selection of Underwriters. If any Demand Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Company and a Stockholder.
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous registration of securities of the Company in an
underwritten offering.
(g) Contemporaneous Demand. If any holder of the Company's securities
that is not a holder of Registrable Securities under this Agreement exercises
demand registration rights to have the Company register its securities under the
1933 Act (a "Non-Stockholder Registration") within a period of 30 days before or
after the time a Stockholder shall have requested a Demand Registration, then
the Stockholder's Demand Registration shall have priority over the Non-
Stockholder Registration. Any request by Safeguard Scientifics, Inc. to the
Company to effect a Rights Offering (defined below), made within 30 days before
or after a Stockholder shall have requested a Demand Registration, shall have
priority over the Demand Registration during the Rights Exclusivity Period
(defined below).
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2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the 1933 Act (other than a Demand Registration or a
registration with respect to a Rights Offering (defined below)), and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities and will include in such
Piggyback Registration, subject to the allocation provisions below, all
Registrable Securities with respect to which the Company has received written
requests for inclusion within 15 days after the Company's mailing of such
notice. The Company shall not select a form of registration statement which
imposes, for its use, limitations on the maximum value or number of securities
to be registered if these limitations would preclude registration of the
Registrable Securities that the Company has been requested to include in such
registration.
(b) Piggyback Expenses. In all Piggyback Registrations, the Company
will pay the Registration Expenses related to the Registrable Securities of the
Selling Stockholders, but the Selling Stockholders will pay the Underwriting
Commissions related to their Registrable Securities.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number that
can be sold in such offering, at a price reasonably related to fair value, the
Company will allocate the securities to be included as follows: first, the
securities the Company proposes to sell on its own behalf; and second,
Registrable Securities requested to be included in such registration by the
Selling Stockholders, pro rata on the basis of the respective Registrable
Securities requested for sale by them, and third, securities registered to be
included in such registration by other stockholders of the Company.
(d) Priority on Secondary Registrations. If a Piggyback Registration is
initiated as an underwritten secondary registration on behalf of holders of the
Company's securities (other than a Demand Registration pursuant to Section 1),
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will allocate the securities to be included
as follows: first, the securities requested to be included by the holders
initiating such registration; and second, Registrable Securities requested to be
included in such registration, pro rata on the basis of the number of
Registrable Securities owned among the Selling Stockholders.
(e) Selection of Underwriters. If any Piggyback Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Company, if the registration is
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under Section 2(c), or by the holders initiating such registration, if the
registration is under Section 2(d).
3. Registration on Form S-3.
The Company shall use its best efforts to qualify for registration on
Form S-3 or any comparable or successor form or forms; and to that end, the
Company shall register (whether or not required by law to do so) its Common
Stock under the Securities Exchange Act of 1934, as amended, in accordance with
the provisions of that Act as soon as possible following the effective date of
the first registration of any of the Company's securities under the 1933 Act.
After the Company has so qualified, in addition to the rights contained in the
foregoing provisions of this Registration Rights Agreement, each holder of
Registrable Securities shall have the right to require registration of its
Registrable Securities on Form S-3 at the Company's expense, provided that (a)
the Registrable Securities to be registered shall have a market value of at
least $1 million and (b) the Company shall not be obligated to effect more than
one such registration during any 12-month period. When the Company receives
notice of any holder's request for a registration on Form S-3, it shall send
notice of such proposed registration to all other holders of Registrable
Securities.
4. Rights Offerings.
(a) Rights. The Company shall, upon receipt of a written request from
Safeguard Scientifics, Inc., a Pennsylvania corporation ("Safeguard"), grant to
the holders of the common stock of Safeguard rights (the "Rights") to purchase
from the Company such number of shares of Common Stock as determined by
Safeguard up to a maximum of 40% of the sum of (i) all issued and outstanding
shares of Common Stock, (ii) all shares of Common Stock issuable upon conversion
of all outstanding shares of Preferred Stock, and (iii) all shares of Common
Stock issuable upon the exercise of all outstanding options, warrants or other
rights to purchase Common Stock, all as of the effective date of the
registration statement. The Rights shall be issued in an offering (the "Rights
Offering") pursuant to a registration statement, shall be exercisable for a
period of no greater then 45 days after the commencement of the Right Offering
and shall be transferable by the holder thereof during that period. The Company
shall not be obligated to effect a Rights Offering unless the total market value
of the Company is at least $30 million as determined in good faith by the Board
of Directors of the Company with the advice of such expert as the Board may
choose, if any.
(b) Expenses. In a Rights Offering, the Company shall bear all
reasonable costs and expenses of the Rights Offering, including the Company's
printing, legal and accounting fees and expenses, filing fees of the Securities
and Exchange Commission and the National Association of Securities Dealers,
Inc., and "Blue Sky" fees and expenses; provided, however, that the Company
shall have no obligation to pay or otherwise bear any portion of (i) the
underwriters' commissions or discounts attributable to the Rights Shares being
offered and sold by any selling holders of Rights Shares in connection with the
registration of the Rights Shares or (ii) the fees and
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expenses of counsel of such selling holders, if different than counsel to the
Company. The Company shall reimburse Safeguard for its internal expenses
incurred under this Section 4(b) by payment of $50,000 on a nonaccountable
basis, such payment to be made at the closing of the Rights Offering.
(c) Selection of Underwriters and Counsel. The selection of investment
banker(s) and manager(s) for the Rights Offering shall be made by Safeguard,
subject to the reasonable approval of a majority of the Board of Directors of
the Company, which investment banker(s) shall underwrite, on a standby, firm
commitment basis, any portion of the offered Common Stock not purchased through
the exercise of Rights. The Company shall also engage legal counsel selected by
Safeguard, subject to the reasonable approval of a majority of the Board of
Directors of the Company, which counsel shall represent the Company in
connection with the conduct of the Rights Offering.
(d) Exercise Price. The exercise price of the Rights shall be
determined by negotiation among the Company, the underwriters and the selling
stockholders, if any. Prior to the commencement of the Rights Offering, the
Company shall use its best efforts to cause any holder of more than 2% of its
Common Stock (or rights to acquire more than 2% of its Common Stock) to execute
and deliver to the managing underwriters of the Rights Offering an agreement to
withhold such shares from the market for such period, not exceeding 180 days
following the closing of the Rights Offering, as such underwriters shall
request.
(e) Exclusivity Period. The obligations of the Company pursuant to this
Section 4 shall expire on the eighth anniversary of this Agreement (such period,
the "Rights Exclusivity Period") unless a registration statement relating to the
Rights Offering has been filed with the Securities and Exchange Commission by
such date, in which case the Rights shall not expire until 150 days after the
date such filing was made.
(f) Stock Split. After Safeguard has notified the Company of its
intention to commence the Rights Offering, the Company shall, prior to the
filing of such registration statement as provided hereinafter (or at such
earlier date as agreed to by the Company and Safeguard), take all such actions
as shall be necessary to cause a split of its authorized Common Stock in such
ratio as Safeguard may reasonably request. All reference to share amounts in
this Agreement other than as specifically noted shall be deemed to refer to
share amounts prior to such split.
(g) Registration Services. Safeguard shall diligently and in a timely
fashion assist the Company in structuring the Rights Offering, in preparing the
necessary registration statement and related disclosure documentation, in
clearing the Rights Offering with the Commission and applicable state securities
commissions and shall provide such other services and assistance in connection
with the Rights Offering as the Company shall reasonably request; provided that
nothing contained herein shall require Safeguard to provide to the Company any
services or assistance which, if rendered by Safeguard, would require Safeguard
to register as a broker-
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dealer under Section 15 of the Exchange Act or as an investment Adviser under
the Investment Advisor Act of 1940, as amended.
(h) Working Group. The Company shall cause its counsel and auditors and
the Company's employees to render such assistance in consummating the Rights
Offering, at the Company's expense, as is customary in the consummation by a
company of its initial public offering. In addition, in rendering services under
this Section 4, Safeguard may engage special legal counsel, one or more rights,
registrar and transfer agents, and such other consultants as Safeguard may deem
necessary or desirable in connection with the Rights Offering, the expenses of
which shall be paid by the Company and which are not included in the
reimbursement described in Section 4(b) above. In addition, Safeguard may
require the Company to engage a registered broker-dealer of Safeguard's
designation, subject to the reasonable approval of the Company, to provide such
services in connection with the Rights Offering as Safeguard may deem reasonably
necessary or desirable, including without limitation, to effect or underwrite
the offering of the Rights or the Rights Shares in states in which applicable
state laws require that a registered broker-dealer effect such offering.
5. Holdback Agreements.
Neither the Company nor any Stockholder shall effect any public sale or
distribution of equity securities of the Company or any securities convertible
into or exchangeable or exercisable for such securities during the seven days
prior to and the 90 days after any underwritten Demand Registration,
underwritten Piggyback Registration or underwritten Rights Offering has become
effective (except as part of such underwritten registration).
6. Registration Procedures.
Whenever the holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to Section 1 or 2 of this
Agreement, or Safeguard has requested the Company to commence a Rights Offering
pursuant to Section 4 of this Agreement, the Company will, as expeditiously as
possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities or Rights and Common Stock underlying such Rights and use
its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or
prospectus or any amendments or supplements or term sheet thereto, the
Company will furnish each Selling Stockholder or Safeguard, as
applicable, with copies of all such documents proposed to be filed) as
promptly as practical;
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the
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prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not less than 120
days;
(c) furnish to each Selling Stockholder and/or Safeguard such
number of copies of such registration statement, each amendment and
supplement thereto and the prospectus included in such registration
statement (including each preliminary prospectus and any term sheet
associated therewith), and such other documents as such Selling
Stockholder and/or Safeguard may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller or the sale of the of the Rights in the Rights Offering;
(d) use its best efforts to register or qualify such
Registrable Securities or Rights and shares of Common Stock underlying
such Rights under such other securities or blue sky laws of such
jurisdictions as the managing underwriter(s) may reasonably request;
(e) notify each Selling Stockholder or Safeguard at any time
when a prospectus relating thereto is required to be delivered under
the 1933 Act within the period that the Company is required to keep the
registration statement effective of the happening of any event as a
result of which the prospectus included in such registration statement,
together with any associated term sheet, contains an untrue statement
of a material fact or omits any fact necessary to make the statement
therein not misleading, and, at the request of any such seller or
Safeguard, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities or Rights and shares of Common Stock underlying
such Rights, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statement
therein not misleading;
(f) cause all such Registrable Securities or Rights and shares
of Common Stock underlying such Rights to be listed or included on
securities exchanges on which similar securities issued by the Company
are then listed or included;
(g) provide a transfer agent and registrar for all such
Registrable Securities or Rights and shares of Common Stock underlying
such Rights not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other customary
actions as may be reasonably necessary to expedite or facilitate the
disposition of such Registrable Securities or the consummation of the
Rights Offering;
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(i) obtain a "comfort" letter addressed to the Company from
its independent public accountants in customary form and covering such
matters of the type customarily covered by "comfort" letters;
(j) make available for inspection by any Selling Stockholder
or Safeguard, any underwriter participating in any disposition or the
Rights Offering pursuant to such registration statement, and any
attorney, accountant or other agent retained by any such seller,
Safeguard or any underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such seller or Safeguard or any
such underwriter, attorney, accountant or agent in connection with such
registration statement;
(k) with respect to a Rights Offering, the Company shall
prepare and file with the Commission, promptly upon Safeguard's
request, any amendments or supplements to the registration statement or
prospectus that, in Safeguard's opinion, may be necessary or advisable
in connection with the Rights Offering, subject to the reasonable
approval of counsel for the Company and the Company shall not file any
amendment or supplement to the registration statement or prospectus
unless (i) it has furnished Safeguard with a copy of such amendment or
supplement a reasonable time prior to filing and (ii) Safeguard has not
reasonably objected to such amendment or supplement by notice to the
Company;
(l) with respect to a Rights Offering, the Company shall not
issue any advertisement, press release, mailing or other solicitation
material of which Safeguard reasonably disapproves by prompt written
notice to the Company after receiving reasonable notice thereof. At the
time of mailing the prospectus relating to the Rights Offering and at
the time of the closing of the Rights Offering, Safeguard shall be
entitled to receive (A) from the Company such certificates and
documents evidencing compliance with such representations and
warranties of the Company as Safeguard shall reasonably request, and
(B) from the Company's counsel and independent accountants such
opinions and documents as Safeguard may reasonably request thereof as
if it were applicable to the Rights Offering; and
(m) at the time of mailing the prospectus relating to the
Rights Offering and at the time of the closing of the Rights Offering,
Safeguard shall be entitled to receive (i) from the Company such
certificates and documents evidencing compliance with such
representations and warranties of the Company as Safeguard shall
reasonably request, and (ii) from the Company's counsel and independent
accountants such opinions and documents as Safeguard may reasonably
request thereof as if it were applicable to the Rights Offering.
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7. Indemnification.
(a) The Company hereby indemnifies, to the extent permitted by law,
each Stockholder, Safeguard, their respective officers and directors, if any,
and each person who controls any of them within the meaning of the 1933 Act
(each, an "Indemnified Party") against all losses, claims, damages, liabilities
and expenses arising out of or resulting from any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus
or preliminary prospectus or associated term sheet or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such Indemnified Party expressly for use therein or by any
Indemnified Party's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such Indemnified Party with a sufficient number of copies of the same.
In connection with an underwritten offering, the Company will indemnify the
underwriters, their officers and directors, and each person who controls such
underwriters (within the meaning of the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of any Indemnified Party.
(b) In connection with any registration statement in which a Selling
Stockholder is participating, each such holder will furnish to the Company in
writing such information as is reasonably requested by the Company for use in
any such registration statement or prospectus and will indemnify, to the extent
permitted by law, the Company, its directors and officers and each person who
controls the Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact or any omission or alleged omission of a
material fact required to be stated in the registration statement or prospectus
or any amendment thereof or supplement thereto or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in information so furnished in writing by
such holder specifically for use in preparing the registration statement.
Notwithstanding the foregoing, the liability of a Selling Stockholder under this
Section 7(b) shall be limited to an amount equal to the net proceeds actually
received by the Selling Stockholder from the sale of Registrable Securities
covered by the registration statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. Any failure to give prompt notice shall deprive a party of
its right to indemnification hereunder only to the extent that such failure
shall have adversely affected the indemnifying party. If the defense of any
claim is assumed, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled, or elects
not, to assume the defense of a claim will
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not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
8. Participation in Underwritten Registrations.
No Selling Stockholder may participate in any underwritten registration
hereunder unless such holder (a) agrees to sell such holder's securities on the
basis provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements under Sections 1(e) or 2(e), and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
9. Definitions.
(a) The term "Fully-Diluted Common Stock" means, as of a certain date,
shares of the Common Stock that are issued and outstanding plus any additional
shares of Common Stock that may be issuable upon the conversion, exercise or
exchange of any rights that may be issued and outstanding.
(b) The term "Initial Public Offering" means the first public offering
under the 1933 Act of any of the Company's equity securities.
(c) The term "Registrable Securities" means (i) the Common Stock of the
Company registered in the names of the Stockholders from time to time, (ii) the
Common Stock issuable upon the conversion of the Series A Preferred Stock, and
(iii) any securities issued or to be issued with respect to the securities
referred to above by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such securities
will cease to be Registrable Securities when they have been (A) effectively
registered under the 1933 Act and disposed of in accordance with the
registration statement covering them, or (B) transferred pursuant to Rule 144
(or any similar provision then in force).
(d) The term "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, expenses and fees for listing the securities to be registered on
exchanges or electronic quotation systems on which similar securities issued by
the Company are then listed, and fees and disbursements of counsel for the
Company and of all independent certified public accountants, underwriters (other
than Underwriting Commissions) and other persons retained by the Company.
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(e) The term "Selling Stockholders" means registered holders of
Registrable Securities who request inclusion of all or a portion of their shares
of Registrable Securities in a Demand Registration pursuant to Section 1(b) or a
Piggyback Registration pursuant to Section 2(a). Such term also includes those
Stockholders who demand a Demand Registration for the purposes of Sections 5, 6,
and 7 and those Stockholders who are permitted by the Company to register
Registrable Securities in a Rights Offering.
(f) The term "Underwriting Commissions" means all underwriting
discounts or commissions relating to the sale of securities of the Company, but
excludes any expenses reimbursed to underwriters.
10. Limitations on Subsequent Registration Rights.
From and after the date of this Agreement, the Company may enter into
an agreement with any holder or prospective holder of any securities of the
Company that would allow such holder or prospective holder to include such
securities in any registration filed under Sections 1 or 2 hereof or that would
add any such holder or prospective holder as a party to this Agreement. However,
the Company shall not enter into any such agreement without the prior written
consent of the beneficial holders of a majority of the outstanding Registrable
Securities unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities would not reduce the amount of the
Registrable Securities that the Stockholders would be entitled to include in
such registration.
11. Miscellaneous.
(a) Termination of Other Agreements. This Agreement sets forth the
entire understanding of the parties hereto with respect to rights to the
registration of capital stock of the Company and supersedes all prior agreements
or understandings among the parties regarding such matters.
(b) Notices. Any notices required hereunder shall be deemed to be given
upon the earlier of the date when received at, or (i) the third business day
after the date when sent by certified or registered mail, (ii) the next business
day after the date sent by guaranteed overnight courier, or (iii) the date sent
by telecopier or delivered by hand, in each case, to the address of the
Company's corporate headquarters in the case of any notice to the Company, and
until changed by notice to the Company, the respective addresses of the
Stockholders on file with the Company in the case of any notice to the
Stockholders.
(c) Amendments and Waivers. The provisions of this Agreement may be
amended or terminated and the Company may take any action herein prohibited, or
omit to perform any act
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herein required to be performed by it, if approved in writing by the
Stockholders that own beneficially a majority of the Registrable Securities and
or by any agreement permitted by Section 9.
(d) Binding Effect. This Agreement will bind and inure to the benefit
of the respective successors (including any successor resulting from a merger or
similar reorganization), assigns, heirs, and personal representatives of the
parties hereto. Without limiting the generality of the foregoing, in addition,
if a Stockholder liquidates or reorganizes such that its assets are transferred
to its own stockholders or partners or to another entity, such stockholders,
partners or entity shall succeed to all of the rights of the Stockholder
hereunder.
(e) Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the internal law, not
the law of conflicts, of Delaware.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument and
to be effective as of the date first written above. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(g) Interpretation. Unless the context of this Agreement clearly
requires otherwise, (a) references to the plural include the singular, the
singular the plural, the part the whole, (b) references to one gender include
all genders, (c) "or" has the inclusive meaning frequently identified with the
phrase "and/or" and (d) "including" has the inclusive meaning frequently
identified with the phrase "but not limited to." The section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect.
IN WITNESS WHEREOF, the Company has executed and delivered this
Agreement as of the date first written above.
eMerge Vision Systems, Inc.
By: /s/: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[Stockholders will execute Counterpart Signature Pages to this Agreement.]
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JOINDER AND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
REFERENCE is made to certain Registration Rights Agreement dated as of
July 18, 1997 (the "Agreement"), by and among eMERGE Vision Systems, Inc., a
Delaware corporation (the "Company"), and the stockholders of the Company listed
on Schedule I hereto (collectively, the "Series A Stockholders").
BACKGROUND
On July 29, 1998, the Company entered into a series of agreements with
the individuals listed on Schedule II hereto (the "Common Stockholders") whereby
the Company obtained exclusive rights to certain infrared and electrolyte
therapy technologies in exchange for the issuance of shares of the Company's
common stock and other consideration. In connection therewith, the Common
Stockholders were granted certain piggyback registration rights in connection
with the issuance of the shares of the Company's common stock. The Common
Stockholders desire, and have required that the Company seek on their behalf,
the consent of the Series A Stockholders to amend the Agreement to provide the
Common Stockholders with pari pasu treatment of their shares of the Company's
common stock with the Series A Stockholders' shares, which are convertible into
shares of the Company's Common Stock, with regard to piggyback registration
rights.
The Company now desires to have the Common Stockholders listed on
Schedule II join into the Agreement on a parity with the existing Series A
Preferred Stockholders with regard to piggyback registration rights only.
WITNESSETH
The parties hereto, each intending to be legally bound and in exchange
for the mutual covenants contained in the Agreement, incorporated herein by
reference, agree as follows:
12 The undersigned Series A Stockholders, representing a majority of
the beneficial holders of the outstanding Series A Preferred Stock of the
Company hereby agree to the joining into Sections 2(c) and 2(d) of the Agreement
by the Common Stockholders and to the related terms and conditions contained in
the Agreement whereby the Common Stockholders will be treated on a parity with
the Series A Stockholders with regard to piggyback registration rights only, and
agree to the terms contained in this Joinder and Amendment to Registration
Rights Agreement (this "Amendment").
13 For the purposes of Sections 2(c) and 2(d) only, the Agreement is
hereby amended to include the following definitions:
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(a) The term "Stockholder" shall mean the stockholders listed on
Schedule I and Schedule II hereto.
14 The undersigned Common Stockholders hereby agree to joining into
Sections 2(c) and 2(d) of the Agreement as amended hereby and agree to be bound
by the terms and conditions contained therein and herein.
Except as expressly set forth above, all other terms and conditions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has executed and delivered this
Amendment as of the ___ day of September, 1998.
eMERGE VISION SYSTEMS, INC.
By:/s/: Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[STOCKHOLDERS WILL EXECUTE COUNTERPART SIGNATURE PAGES TO TIES AGREEMENT.]
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COUNTERPART SIGNATURE PAGE TO
JOINDER AND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned hereby agree that this Amendment
may be executed in Counterpart copies, each of which shall be deemed an
original, and have executed and delivered this Amendment to be effective as the
last date written below.
Applewood Associates, L.P.
September, 1998 By: /s/:Xxxxx Xxxxxxxxxx
--------------------
Name Xxxxx Xxxxxxxxxx
Title: General Partner
September, 1998 /s/: Xxxxxx X. Xxxxxxx, III
---------------------------
Xxxxxx X. Xxxxxxx, III
September, 1998 /s/: Xxxxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxxxx X. Xxxxxxx
September, 1998 /s/: Xxxxx X. Xxxxxxx
---------------------
Xxxxx X. Xxxxxxx
September, 1998 /s/: Xxxxxx Xxxxxx & /s/: Tinal Xxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxxx Xxxxxxx & Tinal Xxxx Xxxxx (JTWROS)
September, 1998 /s/: Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
September, 1998 /s/: Xxxx X. Xxxxxxxxxx
-----------------------
Xxxx X. Xxxxxxxxxx
September, 1998 /s/: Xxxx X. Xxxxxxx
--------------------
Xxxx X. Xxxxxxx
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Safeguard XL Capital, L.P.
By: Safeguard Scientifics (Delaware), Inc., General
Partner
September, 1998 By: /s/:Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
TECHNOLOGY LEADERS L. P.
By: Technology Leaders Management, L. P.
a General Partner
By: Technology Leaders Management, Inc.
its General Partner
September, 1998 By: /s/: Xxxxxxxxxxx Xxxxxx
-----------------------
Managing Director
TECHNOLOGY LEADERS II L. P.
By: Technology Leaders II Management, L. P.
a General Partner
By: Technology Leaders Management, Inc.
its General Partner
September, 1998 By: /s/: Xxxxxxxxxxx Xxxxxx
-----------------------
Managing Director
TECHNOLOGY LEADERS H OFFSHORE C.V.
By: Technology Leaders II Management, L. P.
a General Partner
By: Technology Leaders Management, Inc.
the General Partner
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September, 1998 By: /s/: Xxxxxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
TECHNOLOGY LEADERS MI CORP.
September, 1998 By: /s/: Xxxxxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
September, 1998 By: /s/: Xxxx X. Xxxxxx
-------------------
Xxxx X. Xxxxxx
September, 1998 By: /s/: Xxxxx X. Xxxxxxxx
----------------------
Xxxxx X. Xxxxxxxx
September, 1998 By: /s/: Conse X. Xxxxxxx
---------------------
Conse X. Xxxxxxx
September, 1998 By: /s/: Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
September, 1998 By: /s/: Xxxxx X. Xxxxxxxxxx
------------------------
Xxxxx X. Xxxxxxxxxx
September, 1998 By: /s/: Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx
September, 1998 By: /s/: Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx
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September, 1998 By: /s/: Xxxxx X. Xxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxx
September, 1998 By: /s/: Xxxxxx X. Xxxx
-------------------
Xxxxxx X. Xxxx
September, 1998 By: /s/: Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
September, 1998 By: /s/: Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
[End Signature Page]
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SCHEDULE I
SERIES A PREFERRED STOCKHOLDERS
Name Shares
---- ------
Applewood Associates, L.P. 333,919
Xxxxxx X. Xxxxxxx, III 26,250
Xxxxxxxxx X. Xxxxxxx 4,500
Xxxxx X. Xxxxxxx 6,000
Xxxxxx Xxxxxx Xxxxxxx & Xxxx Xxxx Xxxxx (JTWROS) 45,000
Xxxxxxx X. Xxxxxx 41,250
Xxxx X. Xxxxxxxxxx 3,000
Xxxx X. Xxxxxxx 9,000
Safeguard XL Capital, L.P. 4,181,315
Technology Leaders LP 375,037
Technology Leaders II L.P. 477,049
Technology Leaders II Offshore C.V. 378,951
Technology Leaders MI Corp. 428,213
Xxxx X. Xxxxxx 46,200
Xxxxx X. Xxxxxxxx 18,000
Conse X. Xxxxxxx 3,000
Xxxxxx X. Xxxxx 6,000
Xxxxx X. Xxxxxxxxxx 18,000
Xxxxxx X. Xxxxxxxx 8,628
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Xxxxxxx X. Xxxxxxx 3,834
Xxxxx X. Xxxxxxxxx 5,561
Xxxxxx X. Xxxx 5,561
Xxxxxxx X. Xxxxx 4,794
Xxxxx X. Xxxxxx 4,794
---------
6,443,606
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SCHEDULE II
COMMON STOCKHOLDERS
Stockholder Common Shares
----------- -------------
J Technologies, LLC 1,000,000
a South Dakota limited liability company
Attention, Xxx Xxxxx,
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Xxxxxx Xxxxxxx and Xxxxx Xxx, Co-Trustees, 1,000,000
The Xxxxxxx Family Irrevocable Trust dated June 11, 1998
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxx 32,130
0000 Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxx
X0X 0X0
Xxxxxx X. Xxxxxxxx 24,570
0000 Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxx
X0X 0X0
Xxx Xxxxxxxx 3,150
Xxx 0000
Xxxxxxx, Xxxxxxx
X0X lXl
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Xxx Xxxxxxxx 3,150
Xxx 0000
Xxxxxxx, Xxxxxxx
X0X lXl
Xxxxxx Xxxxxxxx 7,000
00 Xxxxxxxxx Xxxxx 0,000,000
Xxxxxxxxx, Xxxxxxx
X0X XX0
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