Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 16, 2005, by and among Viisage Technology, Inc. (the
"COMPANY"), a corporation organized under the laws of the State of Delaware,
with its principal offices at 000 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, L-1 Investment Partners LLC, a limited liability company
organized under the laws of the state of Delaware, with its principal offices at
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("L-1") Aston Capital Partners
L.P. a limited partnership organized under the laws of the state of Delaware,
with its principal offices at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
("ASTON" collectively with L-1, the "PURCHASER" ). This Agreement is being
entered into pursuant to the Investment Agreement dated as of October 5, 2005
between the Company and L-1 (the "INVESTMENT AGREEMENT").
The Company and the Purchaser hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the
meanings given such terms in the Investment Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"BOARD" or "BOARD OF DIRECTORS" means the board of directors of the
Company.
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in The
Commonwealth of Massachusetts generally are authorized or required by law or
other government actions to close.
"CLOSING DATE" means the date of the closing of the purchase and sale
of the Shares pursuant to the Investment Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Company's common stock, par value $0.001 per
share.
"COMPANY INDEMNITEES" shall have the meaning set forth in Section 5(b).
"EFFECTIVE DATE" means with respect to the Registration Statement the
earlier of the 90th day (or the 120th day in the event the Registration
Statement is reviewed by the Commission, including, without limitation, any form
of "modified" or "limited" review) following the receipt of a written request
from the Holders pursuant to Section 2 or the date which is five (5) Business
Days after the date on which the Commission informs the Company (i) that the
Commission will not review the Registration Statement or (ii) that the Company
may request the acceleration of the effectiveness of the Registration Statement
and the Company makes such request.
"EFFECTIVE PERIOD" shall have the meaning set forth in Section 2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FILING DATE" means the 45th day following the receipt by the Company
of the written request pursuant to Section 2.
"HOLDER" or "HOLDERS" means the holder or holders, as the case may be,
from time to time of Registrable Securities.
"HOLDER INDEMNITEES" shall have the meaning set forth in Section 5(a).
"INDEMNITEES" shall have the meaning set forth in Section 5(c).
"PERSON" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to such prospectus, including post-effective amendments, and all
material incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" means (i) the shares of Common Stock issued to
the Purchaser pursuant to the Investment Agreement, (ii) the shares of Common
Stock issuable upon exercise of the Warrants, and (iii) any other shares of
Common Stock that Purchaser may hereafter acquire, provided, however, that such
securities shall no longer be deemed Registrable Securities if (x) such shares
have been sold pursuant to a Registration Statement that has been declared
effective by the SEC; or (y) such shares are sold in compliance with Rule 144.
"REGISTRATION STATEMENT" means any registration statement contemplated
by Section 2, including (in each case) the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference in such registration statement.
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"RULE 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such rule.
"RULE 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"VIOLATION" shall have the meaning set forth in Section 5(a).
2. Request for Resale Registration. If the Company shall receive at any
time after one (1) year after the date of this Agreement, a written request from
one or more Holders that the Company file a registration statement under the
Securities Act of the Registrable Securities then outstanding, then the Company
shall prepare and file with the Commission a Registration Statement covering the
resale of such Registrable Securities as would permit or facilitate the sale and
distribution of all such Registrable Securities in the manner reasonably
requested by the Holders; provided that Purchaser shall be entitled to no more
than two demand registrations pursuant to this Section 2, and that in any event
no more than one demand may be made in any twelve month period. The Registration
Statement shall be on Form S-3 (except if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form in accordance with the
Securities Act and the rules promulgated thereunder). The Company shall (i) not
permit any securities other than the Registrable Securities to be included in
the Registration Statement and (ii) use its reasonable best efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event prior to the
Effective Date, and to keep such Registration Statement continuously effective
under the Securities Act until the earlier of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold; or (y) the
date on which the Registrable Securities may be sold without any restriction
pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to
a written opinion letter addressed to the Company's transfer agent to such
effect (the "EFFECTIVE PERIOD").
3. Registration Procedures. In connection with the Company's
registration obligations hereunder:
(a) The Company shall prepare and file with the Commission on or prior
to the Filing Date, a Registration Statement on Form S-3 (or if the Company is
not then eligible to register for resale the Registrable Securities on Form S-3
such registration shall be on another appropriate form in accordance with the
Securities Act and the rules and regulations promulgated thereunder) covering
the resale to the public of the Registrable Securities, and use its reasonable
best efforts to cause the Registration Statement to become effective and remain
effective as provided herein.
(b) The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
as may be necessary to keep the Registration Statement continuously effective as
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to the applicable Registrable Securities for the Effective Period and prepare
and file with the Commission such additional Registration Statements, if
necessary, in order to register for resale under the Securities Act all of the
Registrable Securities; (i) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; (ii) respond promptly to any
comments received from the Commission with respect to the Registration Statement
or any amendment thereto and promptly provide the Holders true and complete
copies of all correspondence from and to the Commission relating to the
Registration Statement; and (iii) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the Holders thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) The Company shall promptly notify the Holders of Registrable
Securities (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is filed; (B) when the
Commission notifies the Company whether there will be a "review" of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement and (C) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (v) of the occurrence of any
event that makes any statement made in the Registration Statement or Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement, Prospectus or other documents so that, in the case of
the Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(d) The Company shall use its reasonable best efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of, (i) any order suspending
the effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any United States jurisdiction, at the earliest
practicable moment.
(e) If requested by the Holders of a majority of the Registrable
Securities, the Company shall (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement such
information as the Company reasonably agrees should be included therein and (ii)
make all required filings of such Prospectus supplement or such post-effective
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amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(f) The Company shall furnish to each Holder, without charge and upon
request, at least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, and, to the
extent requested by such Person, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission.
(g) The Company shall promptly deliver to each Holder, without charge,
as many copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons may
reasonably request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, the Company
shall use its reasonable best efforts to register or qualify or cooperate with
the selling Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Holder reasonably requests in
writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effective Period and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration Statement;
provided, however, the Company shall in no event be required to (x) qualify to
do business in any state where it is not then qualified or (y) take any action
that would subject it to tax or to the general service of process in any such
state where it is not then subject, or (z) comply with state securities or "blue
sky" laws of any state for which registration by coordination is unavailable to
the Company.
(i) The Company shall, in the case of an underwritten offering,
furnish, at the request of any Holder requesting registration of Registrable
Securities pursuant to Section 2, on the date that such shares of Registrable
Securities are delivered to the underwriters for sale pursuant to such
registration (1) an opinion, dated such date, of the independent counsel
representing Company for the purposes of such registration, addressed to the
underwriters, in customary form and covering matters of the type customarily
covered in such legal opinions; and (2) a comfort letter dated such date, from
the independent certified public accountants of Company, addressed to the
underwriters, in a customary form and covering matters of the type customarily
covered by such comfort letters and as the underwriters shall reasonably
request;
(j) The Company shall enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(k) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to a Registration Statement, and to enable such
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Registrable Securities to be in such denominations and registered in such names
as any Holder may reasonably request.
(l) Upon the occurrence of any event contemplated by Section 3(c)(v),
the Company shall promptly prepare a supplement or amendment, including a
post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an 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 the light of the circumstances under which they were made, not misleading.
(m) The Company shall use its reasonable best efforts to cause all
Registrable Securities relating to the Registration Statement to be listed on
the National Association of Securities Dealers Automatic Quotation System or any
other securities exchange, quotation system or market, if any, on which similar
securities issued by the Company are then listed or traded as and when required
pursuant to the Investment Agreement.
(n) The Company may require each selling Holder to furnish to the
Company information regarding such Holder and the distribution of such
Registrable Securities as is required by law to be disclosed in the Registration
Statement, and the Company may exclude from such registration the Registrable
Securities of any such Holder who fails to furnish such information within
fifteen (15) days after receiving such request.
(o) Each Holder covenants and agrees that (i) it will not sell any
Registrable Securities under the Registration Statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
Section 3(g) and notice from the Company that such Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, will
comply with the prospectus delivery requirements of the Securities Act as
applicable to them in connection with sales of Registrable Securities pursuant
to the Registration Statement.
(p) Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v) or 3(o), such Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement contemplated by Section 3(j), or until it is advised in writing by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement.
(q) If (i) there is material non-public information regarding the
Company which the Board reasonably and in good faith determines not to be in the
Company's best interest to disclose and which the Company is not otherwise
required to disclose, or (ii) there is a significant business opportunity
(including, but not limited to, the acquisition or disposition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
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offer or other similar transaction) available to the Company which the Board
reasonably determines not to be in the Company's best interest to disclose, then
the Company may postpone or suspend filing or effectiveness of a registration
statement for a period not to exceed ninety (90) consecutive days, provided that
the Company may not postpone or suspend its obligation under this Section 3(o)
for more than one hundred and twenty (120) days in the aggregate during any 12
month period.
4. Registration Expenses. All reasonable fees and expenses incident to
the performance of or compliance with this Agreement by the Company (excluding
underwriters' discounts and commissions), except as and to the extent specified
in this Section 4, shall be borne by the Company whether or not the Registration
Statement is filed or becomes effective and whether or not any Registrable
Securities are sold pursuant to the Registration Statement. The fees and
expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the OTC
Bulletin Board and each other securities exchange or market on which Registrable
Securities are required hereunder to be listed, (B) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and the NASD Regulation, Inc. and (C) in compliance with state securities or
blue sky laws, (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is requested by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement, including, without limitation, the Company's independent public
accountants. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder.
5. Indemnification.
(a) The Company shall indemnify and hold harmless each selling Holder,
the officers, directors, partners, agents and employees of each selling Holder,
any underwriter (as defined in the Securities Act) for such Holder and each
Person, if any, who controls such selling Holder or underwriter within the
meaning of the Securities Act or the Exchange Act and their agents
(collectively, the "HOLDER INDEMNITEES"), against any losses, claims, damages or
liabilities (joint or several) to which they or any of them may become subject
under the Securities Act, the Exchange Act or any other federal or state law,
rule or regulation, including any amount paid in settlement of any litigation,
commenced or threatened, and to reimburse them for any reasonable legal or other
expenses incurred by them, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (A)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto; (B) the
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omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; or (C) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with any matter
relating to the Registration Statement (each, a "VIOLATION"); provided, however,
the indemnity agreement contained in this Section 5(a) shall not (i) apply to
any loss, claim, damage, liability or action arising out of, or based upon, a
Violation which occurs in reliance upon and in conformity with written
information furnished by any Holder expressly for use in connection with such
registration; or (ii) in the case of a sale directly by a Holder (including a
sale of such Registrable Securities through any underwriter retained by such
Holder engaging in a distribution solely on behalf of such Holder), inure to the
benefit of any Holder Indemnitee to the extent that any such loss, claim,
damage, liability or action results from an untrue statement or alleged untrue
statement or omission or alleged omission that was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and such Holder,
having previously been provided with copies of such final or amended prospectus
by Company, failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the Registrable Securities to the
Person asserting any such loss, claim, damage or liability in any case in which
such delivery is required by the Securities Act.
(b) Each Holder shall indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration Statement,
each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, each agent and any underwriter for the
Company, and any other selling Holder or other stockholder selling securities in
such Registration Statement or any of its directors, officers, partners, agents
or employees or any Person who controls such selling Holder or such other
stockholder or such underwriter (collectively, the "COMPANY INDEMNITEES")
against any losses, claims, damages or liabilities (joint or several) to which
any Company Indemnitee may become subject under the Securities Act, the Exchange
Act or other federal or state law, including any amount paid in settlement of
any litigation, commenced or threatened, and to reimburse them for any
reasonable legal or other expenses incurred by them, insofar as such losses,
claims, 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 (i) such Violation occurs in reliance upon and in conformity with
written information furnished by or on behalf of such selling Holder expressly
for use in connection with such registration and (ii) only in an amount not
exceeding the net proceeds received by such Holder with respect to securities
sold pursuant to such Registration Statement; provided, however, that the
indemnity agreement contained in this Section 5(b) shall not, in the case of a
sale directly by the Company of its securities (including a sale of such
securities through any underwriter retained by the Company to engage in a
distribution solely on behalf of the Company), inure to the benefit of any
Person to the extent that any such loss, claim, damage, liability or action
results from an untrue statement or alleged untrue statement or omission or
alleged omission that was contained in a preliminary prospectus and corrected in
a final or amended prospectus, and the Company failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
securities to the Person asserting any such loss, claim, damage or liability in
any case in which such delivery is required by the Securities Act.
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(c) Promptly after receipt by any Company Indemnitee or Holder
Indemnitee (collectively, the "INDEMNITEES") under this Section 5 of notice of
the commencement of any action (including any governmental action), such
Indemnitee 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
and control the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that such Indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such Indemnitee by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests, as reasonably determined by either party, between such Indemnitee and
any other party represented by such counsel in such proceeding. In no event
shall the Indemnitees be entitled to more than one firm of counsel at the
expense of the indemnifying party. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the Indemnitee under this
Section 5 to the extent of such prejudice, but the omission to so deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to such Indemnitee otherwise than under this Section 5. If the
indemnifying party advises an Indemnitee that it will contest a claim for
indemnification hereunder, or fails, within 30 days of receipt of any
indemnification notice to notify, in writing, such Indemnitee of its election to
defend, settle or compromise, at its sole cost and expense, any action,
proceeding or claim (or discontinues its defense at any time after it commences
such defense), then the Indemnitee may, at its option, defend, settle or
otherwise compromise or pay such action or claim in each case at the
indemnifying party's expense. In any event, unless and until the indemnifying
party elects in writing to assume and does so assume the defense of any such
claim, proceeding or action, the Indemnitee's reasonable costs and expenses
arising out of the defense, settlement or compromise of any such action, claim
or proceeding shall be losses subject to indemnification hereunder. The
Indemnitee shall cooperate fully with the indemnifying party in connection with
any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available
to the Indemnitee that relates to such action or claim. The indemnifying party
shall keep the Indemnitee fully informed at all times as to the status of the
defense or any settlement negotiations with respect thereto. If the indemnifying
party elects not to defend any such action or claim, the Indemnitee party shall
keep the indemnifying party informed at all times as to the status of the
defense; provided, however, that the failure to keep the indemnifying party so
informed shall not affect the obligations of the indemnifying party hereunder.
No indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its written consent; provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the written consent of the
Indemnitee, consent to entry of any judgment or enter into any settlement that
(i) does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnitee of a general written release from all liability
with respect to such claim or litigation or (ii) contains an admission of guilt
on the part of the Indemnitee.
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(d) The obligations of the Company and the Holders under this Section 5
shall survive the completion of any offering of Registrable Securities in a
Registration Statement whether under Section 2 or otherwise.
(e) If the indemnification provided for in this Section 5 is
unavailable to a party that would have been an Indemnitee under this Section 5
in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to herein, then each party that would
have been an indemnifying party hereunder shall, in lieu of indemnifying such
Indemnitee, contribute to the amount paid or payable by such Indemnitee as a
result of such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) in such proportion as is appropriate to reflect the relative
fault of such indemnifying party, on the one hand, and such Indemnitee, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the Violation relates to information supplied by such
indemnifying party or such Indemnitee and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
Violation. The parties agree that it would not be just and equitable if
contribution pursuant to this Section 5(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the preceding sentence. The amount
paid or payable by a contributing party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above in this Section 5(e) shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained herein shall be
in addition to (i) any cause of action or similar right of an Indemnitee against
an indemnifying party or others and (ii) any liabilities the indemnifying party
may be subject to pursuant to applicable law.
6. Rule 144. With a view to making available to the Holders the
benefits of Rule 144 and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its reasonable best efforts:
(a) to file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act and the rules and
regulations promulgated thereunder;
(b) if not required to file such reports and documents referred to in
subsection (a) above, to keep publicly available certain information regarding
the Company, as contemplated by Rule 144(c)(2) of the Securities Act; and
(c) to take all other actions reasonably necessary to enable a Holder
to sell the Registrable Securities without registration under the Securities Act
within the limitation of the exemption provided by Rule 144.
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7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder,
of any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) Entire Agreement; Amendment. This Agreement and the Investment
Agreement contain the entire understanding and agreement of the parties with
respect to the matters covered hereby and, except as specifically set forth
herein or in the Investment Agreement, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters, and they supersede all prior understandings and agreements with respect
to said subject matter, all of which are merged herein. No provision of this
Agreement may be waived or amended other than by a written instrument signed by
the Company and the Holders of at least a majority of all Registrable Securities
then outstanding; provided that any waiver or amendment that adversely affects a
Holder without adversely affecting other Holders in a similar manner must be
approved in writing by such Holder. Any amendment or waiver effected in
accordance with this Section 7(b) shall be binding upon each Holder (and their
permitted assigns) and the Company.
(c) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, facsimile (with receipt confirmed by telephone) or nationally
recognized overnight express courier postage prepaid, and shall be deemed given
when so mailed and shall be delivered as addressed as follows:
If to the Company:
Viisage Technology, Inc.
000 Xxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
With a copy to:
Xxxxxx, Xxxx & Xxxxxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
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If to the Purchaser, to:
X/X X-0 Xxxxxxxxxx Xxxxxxxx, LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chairman
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or at such other address as may have been furnished to the Company in
writing.
Any party hereto may from time to time change its address for notices by giving
written notice of such changed address to the other party hereto.
(d) Waivers. No waiver by either party of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns
and shall inure to the benefit of each Holder and its successors and assigns.
The Company may not assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of each Holder. The Purchaser may
assign its rights hereunder in the manner and to the Persons as permitted herein
and under the Investment Agreement.
(f) Assignment of Registration Rights. The rights of each Holder
hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
assignable by each Holder of all or a portion of the Registrable Securities if:
(i) the Holder 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) following such transfer or assignment the further disposition of such
securities by the transferee or assignees is restricted under the Securities Act
and applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this Section, the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions of this Agreement, and (v) such transfer shall have been made in
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accordance with the applicable requirements of the Investment Agreement. The
rights to assignment shall apply to the Holders (and to subsequent) successors
and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(h) Termination. This Agreement shall terminate on the earlier of (i)
the date on which all remaining Registrable Securities may be sold without
restriction pursuant to Rule 144(k) of the Securities Act or (ii) the date when
all Registrable Securities have been sold.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law thereof.
(j) Severability. The provisions of this Agreement are severable and,
in the event that any court of competent jurisdiction shall determine that any
one or more of the provisions or part of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Agreement and this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
(k) Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(l) Submission to Jurisdiction; Waiver of Jury Trial. Each of the
parties (a) submits to the jurisdiction of any state or federal court sitting in
the State of New York in any action or proceeding arising out of or relating to
this Agreement, (b) agrees that all claims in respect of such action or
proceeding may be heard and determined in any such court, and (c) agrees not to
bring any action or proceeding arising out of or relating to this Agreement in
any other court. Each of the parties waives any defense of inconvenient forum to
the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect
thereto. Any party may make service on another party by sending or delivering a
copy of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 7(c). Nothing in this Section
7(l), however, shall affect the right of any party to serve legal process in any
other manner permitted by law. IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES HERETO IRREVOCABLY CONSENT
TO TRIAL WITHOUT A JURY.
[Reminder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized officers as
of the date first above written.
COMPANY:
VIISAGE TECHNOLOGY, INC.
By:
------------------------------------------
Name:
Title:
PURCHASER:
L-1 INVESTMENT PARTNERS LLC
By:
------------------------------------------
Name:
Title:
ASTON CAPITAL PARTNERS L.P.
By: ASTON CAPITAL PARTNERS GP LLC,
as its General Partner
By:
------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
