EXHIBIT 10.16
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This Agreement, dated June ____, 2000, is between Microfield Graphics,
Inc. (the "Company") and JMW Capital Partners, Inc. (the "Investor"). SECTION 8
contains an index of all defined terms.
RECITALS
A. The Company has issued to Investor, pursuant to the Note and Warrant
Purchase Agreement dated as of the date hereof, warrants to purchase shares of
Common Stock from the Company.
B. The Investor has requested, and the Company is willing to grant to
the Investor, registration rights, all on the terms and conditions of this
Agreement.
AGREEMENT
The parties agree as follows:
1. REQUEST FOR REGISTRATION.
1.1 REQUEST AND NOTICE. If the Company shall receive, at any time after
the date hereof, a written request from the Holders of at least 50% of the
Registrable Securities (a "Notice") that the Company file a registration
statement under the Securities Act of 1933, as amended (the "1933 Act"), then
the Company shall, subject to the limitations of this Agreement, use all
reasonable efforts to effect as soon as practicable, and in any event within 90
days of the receipt of such request, the registration under the 1933 Act of all
Registrable Securities which the Investor shall have specified in the Notice,
provided that the aggregate proceeds from the sale of Registrable Securities
under such registration are reasonably expected to be at least $5 million. Any
written request from the Holders pursuant to this SECTION 1.1 shall state that
the request is being made pursuant to this SECTION 1.1. The Company will
promptly give written notice of a request for a proposed registration to all
Holders and include all Registrable Securities of any Holder or Holders joining
in such request as are specified in a written request received by the Company
within twenty (20) days after the date of such written notice from the Company.
The Company is obligated to effect only three such registrations pursuant to
this SECTION 1.1 (counting for this purpose only registrations that have been
declared or ordered effective and registrations that have been withdrawn by the
Holders as to which the Holders have not elected to bear the expenses of such
registration
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pursuant to Section 3.3 and would, absent such election, have been required to
bear such expenses).
1.2 SHARES INCLUDED. The Holders shall include in such registration an
aggregate of at least 200,000 shares (appropriately adjusted for any stock
dividend, stock split, or combination applicable to the Registrable Securities)
of the Registrable Securities then held by them, or all of the remaining
Registrable Securities then held by the Holders if less.
1.3 UNDERWRITING. If any Holders intend to distribute the Registrable
Securities covered by its request by means of an underwriting, it shall so
advise the Company as a part of its request made pursuant to SECTION 1.1. In
such event, the Holders shall (together with the Company as provided in SECTION
2.5) enter into an underwriting agreement in customary form with the underwriter
or underwriters selected for such underwriting by the Investor and reasonably
acceptable to the Company. Notwithstanding any other provision of this SECTION
1, if the underwriter advises the Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Holders agrees to limit the number of shares of Registrable Securities that may
be included in the underwriting; provided, however, that the number of shares of
Registrable Securities to be included in such underwriting shall not be reduced
unless all other securities, including any shares offered by the Company, are
first entirely excluded from the underwriting.
1.4 DEFERRAL. Notwithstanding the foregoing, (a) the Company shall not
be obligated to effect a registration pursuant to SECTION 1.1 during the period
starting with the date 60 days prior to the Company's good faith estimated date
of filing of, and ending on the date 90 days following the effective date of, a
registration statement pertaining to an underwritten public offering of
securities for the account of the Company (the "Preclusion Period"), provided,
however, that the Company is at all times during such period diligently pursuing
such registration, and further provided that the Company notifies the Holders at
least 20 days before the beginning of the Preclusion Period and (b) if the
Company shall furnish to the Holders a certificate signed by the President or
Chief Financial Officer of the Company stating that, in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company for the Company to comply with such request and it is therefore
essential to defer the filing of the registration statement relating thereto,
the Company shall have the right to defer such filing for a period of not more
than 90 days after receipt of the Holder Notice; provided, however, that the
Company may not exercise this right more than twice (for a total of up to 120
days) in any 12-month period.
1.5 COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register any of its stock or other securities under the 1933
Act in connection with the public offering of such securities solely for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan or a registration on any form that does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities),
the Company shall, at
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such time, promptly give the Holders written notice of such registration. Upon
the written request of a Holder given within ten (10) business days after
mailing of such notice by the Company in accordance with Section 7.5, the
Company shall, subject to the provisions of Section 4.4, include in the
registration statement all of the Registrable Securities that such Holder has
requested to be registered. The Holder's rights under this Section may be
exercised an unlimited number of times.
1.6 FORM S-3 REGISTRATION. In the event that the Company receives a
written request from the Holder that the Company effect a registration on Form
S-3 and any related qualification or compliance with respect to all or a part of
the Registrable Securities owned thereby, the Company will, as soon as
practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of the Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holders joining in such request as are specified in a
written request given within twenty (20) days after receipt of a written notice
from the Company of the proposed registration; provided, however, that the
Company shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 1.6 (i) if Form S-3 is not available for
such offering by the Holders; (ii) if the Company believes in good faith that it
will file a registration statement pertaining to an underwritten public offering
of securities for the account of the Company within 90 days of receiving a
request to register pursuant to this Section 1.6 or a registration statement
relating to such an offering by the Company has been declared effective within
90 days of the Company receiving such notice; (iii) if the anticipated aggregate
offering price of the Registrable Securities to be registered (before deductions
for underwriters' discounts and commissions) does not exceed $500,000; (iv) if
the Company shall have effected a registration under this Section 1.6 within the
12-month period preceding such request for registration under this Section 1.6;
or (v) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) days after
receipt of the request for registration under this Section 1.6; provided,
however, that the Company shall not utilize this right to delay any requested
registration more than twice (for a total of up to 120 days) in any 12-month
period.
Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request of the Investor. Registrations effected pursuant to this Section 1.6
shall not be counted as demands for registration or registrations effected
pursuant to Sections 1.1 or 1.5, respectively.
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2. OBLIGATIONS OF THE COMPANY.
Whenever required under SECTION 1 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
2.1 REGISTRATION STATEMENT. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use
commercially reasonably efforts to cause such registration statement to become
effective, and keep such registration statement effective for up to nine months
(or, if earlier, until participating Holders have sold the Registrable
Securities held by them).
2.2 AMENDMENTS. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement.
2.3 PROSPECTUS. Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by it.
2.4 BLUE SKY. Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall be reasonably requested
by the Holders, provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
2.5 UNDERWRITING. In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
2.6 NOTIFICATION. Notify the Holders, at any time when a prospectus
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, either (a) includes
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 not
misleading in the light of the circumstances then existing or (b) to the
Company's knowledge, fails to comply with the 1933 Act or any other applicable
federal or state securities laws.
2.7 LISTING. Cause all such Registrable Securities registered hereunder
to be listed on each securities exchange on which the Common Stock is then
listed.
2.8 OPINIONS AND COMFORT LETTERS. Furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such
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Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to Section 1, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (a) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (b) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
3. EXPENSES.
3.1 REGISTRATION EXPENSES. All expenses (other than underwriting
discounts and commissions relating to Registrable Securities), including without
limitation, all registration, filing, and qualification fees, printing and
accounting fees and legal fees and expenses of the Company's counsel and counsel
for the Holders (which counsel shall be selected by the Holders and shall be
reasonably acceptable to the Company) incurred in connection with a registration
pursuant to SECTION 1.1, SECTION 1.5 OR Section 1.6 shall be borne by the
Company.
3.2 UNDERWRITING EXPENSES. All underwriting discounts and commissions
relating to the Registrable Securities shall be borne by the Holders.
3.3 WITHDRAWN REGISTRATION. The Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to SECTION 1.1 if
the registration request is subsequently withdrawn at any time at the request of
the Investor (in which case the Investor shall bear such expenses), unless the
Holders agree to forfeit their right to a demand registration pursuant to
SECTION 1.1. Notwithstanding the foregoing, however, if the Holders' request for
such withdrawal is preceded by and a consequence of a material adverse change in
the condition, business or prospects of the Company that the Holders were not
aware of at the time of their request, then the Investor shall not be required
to bear such expenses and shall not forfeit its right to demand one registration
pursuant to SECTION 1.1 as a consequence of such withdrawal request.
4. CERTAIN REQUIREMENTS.
4.1 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the Investor shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably required under applicable federal and
state securities laws and regulations to effect the registration of its
Registrable Securities.
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4.2 DELAY OF REGISTRATION. So long as the Company has given any notice
required by this Agreement, the Holders shall not have any right to take any
action to restrain or otherwise delay any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
4.3 LIMITS ON REGISTRATIONS. The Company shall not be obligated to
register any Registrable Securities under this Agreement at any time after June
____, 2005. This Agreement shall automatically expire on June ____, 2005.
Notwithstanding the foregoing, termination of this Agreement shall not affect
any obligations to register pursuant to a demand received prior to the
termination of this Agreement.
4.4 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.5 to include any of the Holders'
securities in such underwriting unless it accepts the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it and then
only in such quantity as the underwriters determine in their sole discretion
will not, jeopardize the success of the offering by the Company. If the total
amount of securities, including Registrable Securities, requested by
shareholders (including, without limitation, Steelcase) to be included in such
offering exceeds the amount of securities sold (other than by the Company) that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling shareholders (including, without limitation, Steelcase)
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders) but in no event shall the amount of
Registrable Securities included in the offering be reduced below 25% of the
total amount of securities included in the offering.
4.5 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
(a) Schedule A attached hereto lists all registration rights
granted by the Company as of the date hereof.
(b) From and after the date of this Agreement, the Company
shall not, without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement or modify or amend
any existing agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder to (i)
include such securities in any registration filed under Section 1.1, 1.5 or 1.6,
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 will not reduce the amount of the Registrable
Securities of the Holders which is
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included or (ii) make a demand registration which could result in such
registration statement being declared effective prior to the date set forth in
Section 1.1 or within 270 days of the effective date of any registration
effected pursuant to Section 1.1.
5. INDEMNIFICATION.
If any Registrable Securities are included in a registration statement
under this Agreement:
5.1 BY THE COMPANY. To the extent permitted by law, the Company will
indemnify and hold harmless the Holders, the officers and directors of the
Investor, any underwriter (as defined in the 0000 Xxx) for the Holders and each
person, if any, who controls the Investor or underwriter within the meaning of
the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the 1933 Act, the 1934 Act, or any other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions, or violations (collectively a "Violation"): (a)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (b) 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, or
(c) any violation or alleged violation by the Company, or any of the Company'
officers, directors, employees or affiliates of the 1933 Act, the 1934 Act, or
any rule or regulation promulgated under the 1933 Act, the 1934 Act, or any
state or other federal securities law. The Company will reimburse the Holders
and each such officer or director, or underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this SECTION 5.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any the Holders,
underwriter or controlling person.
5.2 BY THE HOLDERS. To the extent permitted by law, the Holders will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Act and each agent and any
underwriter for the Company, against any losses, claims, damages, or liabilities
(joint or several) to which the Company or any such director, officer,
controlling person, agent, or underwriter or controlling person, may become
subject, under the 1933 Act, the 1934 Act, or any other federal or state law,
insofar as such losses, claims,
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damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by a Holder expressly for use in connection with such
registration; and the Holders will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, agent, or underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this SECTION 5.2
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Holders, which consent shall not be unreasonably withheld.
5.3 PROCEDURE. Promptly after receipt by an indemnified party under
this SECTION 5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this SECTION 5, 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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, reasonably satisfactory to the
indemnifying party, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
conflicts of interests between such indemnified party and any other party
represented by such counsel in such proceeding. 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 party under this SECTION 5 except to the extent the indemnifying
party is prejudiced as to its ability to defend such action as a result thereof;
and the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this SECTION 5.
5.4 SURVIVAL. The obligations of each party under this SECTION 5 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
5.5 CONTRIBUTION. To the extent the indemnification provided for in
this Section 1.5 is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any losses, claims, damages or
liabilities referred to herein, the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall to the extent permitted by applicable
law contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other, in connection with the
Violation(s) that resulted in such loss, claim, damage or liability, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying
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party and of the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or allegedly untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
6. REPORTS, ASSIGNMENT AND STAND-OFF.
6.1 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Investor the benefits of Rule 144 promulgated under the
1933 Act and any other rule or regulation of the SEC that may at any time permit
the Holders to sell securities of the Company to the public without
registration, the Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(c) Furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 and the
1934 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 in availing the Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
6.2 ASSIGNMENT. The rights to cause the Company to register Registrable
Securities pursuant to this Agreement may not be assigned by a Holder to a
transferee or assignee of such securities without the Company's prior written
consent, which shall not be unreasonably withheld (the Company shall be deemed
to have consented to any transfer of rights under this Agreement in connection
with the transfer or assignment of the Warrants, in whole or in part, as
permitted under the terms of the Warrants); provided that such transferee or
assignee assumes the transferor's or assignor's obligations hereunder; provided,
further, the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; provided, further, in each of the foregoing instances, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the 1933 Act. For the purpose of determining the number of
shares of Registrable Securities held by a transferee or assignee, the holdings
of transferees and assignees of a partnership, corporation or limited liability
company who are partners, shareholders or members or retired partners or former
shareholders or members of such entity (including spouses and ancestors, lineal
descendants
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and siblings of such partners, shareholders or members or spouses who acquire
Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the entity; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this Agreement.
6.3 "MARKET STAND-OFF" AGREEMENT. The Holders hereby agree that they
shall not, to the extent requested by the Company and an underwriter of Common
Stock (or other securities) of the Company, sell or otherwise transfer or
dispose (other than to donees who agree to be similarly bound) any Registrable
Securities during the period requested by such underwriter (not to exceed 90
days following the effective date of a registration statement of the Company
filed under the 1933 Act); provided, however, that all officers and directors of
the Company also enter into similar agreements.
7. MISCELLANEOUS.
7.1 Binding Effect; NO THIRD PARTY BENEFITS. This Agreement shall be
binding upon and inure to the benefit of the Company, the Investor, the Holders
and their respective successors, heirs, legal representatives and permitted
assigns. Nothing in this Agreement, express or implied, is intended to confer
upon any third party any rights, remedies, obligations, or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
7.2 GOVERNING LAW. This Agreement and all transactions contemplated
hereby, shall be governed, construed and enforced in accordance with the laws of
the State of Oregon, without reference to its choice of law provisions.
7.3 COUNTERPARTS. This Agreement may be executed in several
counterparts each of which shall be deemed to be an original, and all of which
when taken together shall constitute one single agreement between the parties.
7.4 HEADINGS. The headings and subheadings used in this Agreement are
for convenience only and shall not control or affect the meaning or construction
of this Agreement.
7.5 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (a) upon personal delivery to the
party notified, (b) three days after deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party to
be notified at the address for such party, (c) one day after deposit with a
nationally recognized air courier service such as DHL or Federal Express for
next day delivery, or (d) on the date of facsimile transmission, with confirmed
transmission, provided that notice is also given under clauses (a), (b) or (c),
above. Addresses for notices are on the signature page hereof, or such other
address as such party may designate by ten days' advance written notice to the
other party in accordance with this SECTION 7.5.
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7.6 AMENDMENT; WAIVERS. No amendment or modification of this Agreement
shall be effective unless it is set forth in a writing executed by authorized
representatives of both parties. No failure or delay by either party in
exercising any right, power or remedy will operate as a waiver of any such
right, power or remedy and any waiver as to a breach of any particular provision
will not be deemed to be a waiver of any future breach of that same provision.
7.7 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.8 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties regarding the subject matter of this Agreement and supersedes any
other agreements among the parties regarding such subject matter, each of which
is hereby terminated and of no further force or effect.
8. DEFINITIONS.
The following terms are defined as follows or in the indicated sections
of this Agreement:
"1933 ACT" shall have the meaning set forth in SECTION 1.1;
"1934 ACT" shall have the meaning set forth in SECTION 5.1;
"COMMON STOCK" means the common stock of the Company;
"COMPANY" means Microfield Graphics, Inc., an Oregon corporation;
"HOLDER" means Investor and any assignees of Registrable Securities
pursuant to Section 6.2.
"INVESTOR" means JMW Capital Partners, Inc., an Oregon corporation;
"NOTE" shall have the meaning set forth in Recital A;
"NOTICE" shall have the meaning set forth in SECTION 1.1;
"REGISTER," "registration," and "registered" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act of 1933, as amended, and the declaration or
ordering of effectiveness of such registration statement or document;
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"REGISTRABLE SECURITIES" means (a) the Common Stock issuable or issued
upon exercise of the Warrants and (b) any Common Stock issued (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for,
or in replacement of such Common Stock;
"SEC" means the Securities and Exchange Commission;
"STEELCASE" means Steelcase, Inc.
"VIOLATION" shall have the meaning set forth in SECTION 5.1; and
"WARRANTS" means Warrants Nos. 2000-W-1 and 2000-W-2 issued to the
Investor for the purchase of an aggregate of 2,066,000 shares of the Company's
Common Stock, of even date hereof, and all other Warrants issued in connection
therewith.
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The parties have executed this Registration Rights Agreement as of the
date first written above.
MICROFIELD GRAPHICS, INC.
By:____________________________________
Xxxx X. Xxxxxx
Chief Executive Officer
Mailing Address: 00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Chief Executive Officer
Fax: 503/000-0000
JMW CAPITAL PARTNERS, INC.
By:____________________________________
Name:
Its:
Mailing Address: 0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: 503/000-0000
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SCHEDULE A
EXISTING REGISTRATION RIGHTS
Those registration rights granted pursuant to that certain Registration Rights
Agreement dated as of March 19, 1998 between the Company and Steelcase, Inc., as
amended March 25, 1999.
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