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EXHIBIT 10.10
SYNERGIS TECHNOLOGIES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of __________, 1997 (this
"Agreement") among SYNERGIS TECHNOLOGIES, INC., an Ohio corporation (the
"Company"), and the persons executing a counterpart of this Agreement listed as
Holders on the signature pages of this Agreement.
PRELIMINARY STATEMENT
The Company and each of certain companies have entered into an Agreement
and Plan of Merger and Reorganization of even date herewith (the "Merger
Agreement") pursuant to which the Company has agreed to acquire or merge with
such companies. The acquisitions or mergers shall take place concurrently with
the execution of this Agreement, the consideration for such acquisitions and
mergers being cash, common stock of the Company, or a combination thereof.
In consideration of the mutual representations and agreements set forth in
this Agreement, the Company and the Holders agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
1.1 As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means any entity controlling, controlled by or under
common control with a designated person. For the purposes of this definition,
"control" shall have the meaning specified as of the date of this Agreement for
that word in Rule 405 promulgated by the Securities and Exchange Commission
under the Securities Act.
"BOARD" means the Board of Directors of the Company.
"COMMISSION" means the Securities and Exchange Commission, and any
successor thereto.
"COMMON" means the Company's Common Stock, without par value
including any Common issued as (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 thereto, or in exchange for or in replacement thereof.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDERS" means holders of outstanding Common who are (a) persons
executing a counterpart of this Agreement listed as Holders on the signature
pages of this Agreement, or (b) any subsequent legal or beneficial owner of
Common who has become a party to this Agreement in accordance with Section 12 of
this Agreement.
"REGISTRABLE COMMON" means the shares of Common owned by Holders and
which are entitled to registration hereunder.
"RULE 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Exchange Act, as such rule may be amended from time to
time, or any successor rule thereto.
"SECURITIES" means any debt or equity securities of the Company,
whether now or hereafter authorized, and any instrument convertible into, or
exercisable or exchangeable for, Securities or a Security.
"SECURITIES ACT" means the Securities Act of 1933, as amended prior
to or after the date of this Agreement, or any federal statute or statutes which
shall be enacted to take the place of such Act, together with all rules and
regulations promulgated thereunder.
SECTION 2. REGISTRATION.
2.1 Beginning nine months after the date of this Agreement, by a written
notice to the Company, one or more Holders of the Registrable Common issued and
issuable may from time to time demand that the Company register up to 50% of the
Registrable Common held by such Holder or Holders as specified in the notice,
under the Securities Act and under other relevant securities laws, for
disposition in accordance with methods stated in the notice.
2.2 Beginning 21 months after the date of this Agreement, by a written
notice to the Company, one or more Holders of the Registrable Common issued and
issuable may from time to time demand that the Company register up to 100% of
the Registrable Common held by such Holder or Holders as specified in the
notice, under the Securities Act and under other relevant securities laws, for
disposition in accordance with methods stated in the notice.
2.3 When it receives a registration notice under Sections 2.1 or 2.2, the
Company shall promptly deliver a copy of the registration notice to each Holder
of Registrable Common who is not a party to the registration notice, each of
whom may then specify, by notice to the Company within 10 days after receipt by
such Holder of such registration notice from the Company, a number of shares of
Registrable Common held by or issuable to it which it wishes to include in any
registration pursuant to the registration notice under Sections 2.1 or 2.2;
provided, however, that if the
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registration notice so delivered to such Holder was delivered to the Company
under Section 2.1, such Holder may not elect to include more than 50% of such
Holder's shares of Registrable Common. Failure by any Holder to provide notice
to the Company within the time specified in this Section 2.3 shall be deemed to
mean that such Holder has elected not to participate in the registration
pursuant to such registration notice.
2.4 When it receives a registration notice under Sections 2.1 or 2.2, and
provided that the reasonably anticipated price to the public of the Common
proposed to the registered would total more than $500,000, the Company shall use
its best efforts in good faith to effect the registration under the Securities
Act and under other relevant securities laws of Registrable Common specified in
the registration notice under Sections 2.1 or 2.2 and subsequent notices under
Section 2.3 which is not then freely transferable under the provisions of
subsection (k) of Rule 144, all to the extent requisite to permit disposition by
such Holders in accordance with the intended methods of disposition described in
the registration notice. Provided that the Company receives a registration
notice under Section 2.1 at least 60 days prior to the date of the first
anniversary of this Agreement, or under Section 2.2 at least 60 days prior to
the date of the second anniversary of this Agreement, the Company shall use its
best efforts in good faith to cause the registration statement filed in
connection therewith to become effective upon the date of such first anniversary
or second anniversary, as applicable, or as soon as practicable thereafter.
SECTION 3. INCIDENTAL REGISTRATION. Each time the Company proposes to
register any of its Securities under the Securities Act in connection with an
underwritten offering thereof, it will give at least 60 days' advance written
notice of its intention to do so to each Holder. Each Holder may then specify,
by notice to the Company within 10 days after receipt by such Holder of such
registration notice from the Company, a number of shares of Common held by it
which it wishes to include in the Company's proposed registration. Subject to
the market cutback limitations of Section 8, the Company will use its best
efforts in good faith to effect the registration under the Securities Act of
Common specified by Holders under this Section 3 which is not then freely
transferable. Failure by any Holder to provide notice to the Company within the
time specified in this Section 3 shall be deemed to mean that such Holder has
elected not to participate in the Registration pursuant to such registration
notice.
SECTION 4. LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding any
contrary provision of this Agreement:
(a) the Company shall not be required to effect more than two
registrations pursuant to Section 2; and
(b) Section 3 shall not apply to a registration effected solely to
implement an employee benefit plan or to any other form or type of
registration which does not permit inclusion of Common pursuant to
Commission rule or practice; and
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(c) notwithstanding any contrary provision of this Agreement, the
rights to registration granted under this Agreement shall terminate as to
any particular Registrable Common when such Registrable Common shall have
been (i) effectively registered under the Securities Act and sold by the
holder thereof in accordance with such registration, or (ii) sold to the
public pursuant to Rule 144 of the Commission, or any successor rule.
SECTION 5. REGISTRATION PROCEDURES.
5.1 Whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect the registration of any Common under the
Securities Act and under other relevant securities laws, the Company will, as
expeditiously as possible:
(a) in the case of a registration required under Section 2, engage
the underwriters designated by the Holders giving notice under Section 2.1
subject to the terms and conditions of Section 12;
(b) before filing each registration statement or prospectus or
amendment or supplement thereto with the Commission, furnish counsel for
the sellers with copies of all such documents proposed to be filed which
shall be subject to the reasonable approval of such counsel;
(c) prepare and file with the Commission a registration statement
with respect to such Common and use its best efforts in good faith to
cause such registration statement to become and remain effective for the
period provided in Section 5.2;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Common covered by
such registration statement in accordance with the intended methods of
disposition set forth in such registration statement;
(e) prepare and promptly file with the Commission, and notify each
seller of such Common immediately after the filing of, such amendment or
supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, during such periods a
prospectus relating to such securities is required to be delivered under
the Securities Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances in which they were made, not misleading, and notify each
seller immediately after its discovery of such event;
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(f) furnish to the underwriters and each seller of such Common such
numbers of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
underwriters or seller may reasonably request in order to facilitate the
disposition of the Common subject to such registration statement in
accordance with such registration statement;
(g) use its best efforts in good faith to register or qualify any
Common covered by such registration statement under the securities or blue
sky laws of such jurisdictions within the United States of America as any
seller or the underwriters reasonably request, and to take any other acts
which any seller or the underwriters may reasonably request under such
securities or blue sky laws to enable the consummation of the disposition
in such jurisdictions of such Common (provided, however, that the Company
may not be required under this Agreement (i) to qualify generally to do
business as a foreign corporation in any jurisdiction in which it would
not otherwise be required to qualify, or (ii) to subject itself to
taxation in any such jurisdiction, or (iii) to consent to general service
of process in any such jurisdiction);
(h) provide a transfer agent and registrar for all Common sold under
the registration not later than the effective date of the registration
statement;
(i) cause all Common sold under the registration to be listed on
each securities exchange or to be qualified and eligible for trading in
any automated quotation system, if any, on which similar securities issued
by the Company are then listed or traded or, if no such listing or
qualification has then occurred, to cause such Securities to be so listed
or qualified on an exchange or in a trading system that is reasonably
acceptable to the Holders of Common being sold;
(j) enter into such customary agreements (including underwriting
agreements in customary form), as the Holders of more than 50% of the
Common being sold reasonably request in order to expedite or facilitate
the disposition of such Common (including, without limitation, effecting a
stock split or a combination of shares);
(k) furnished to each prospective seller a signed counterpart,
addressed to the prospective sellers, of (i) an opinion of counsel for the
Company, dated the effective date of the registration statement, and (ii)
a "comfort" letter, if any, signed by the independent public accountants
who have certified the Company's financial statements included in the
registration statement, covering substantially the same matters with
respect to the registration statement (and the prospectus included
therein) and (in the case of the "comfort" letter) with respect to events
subsequent to the date of the financial statements, as are customarily
covered (at the time of such registration) in opinions of issuer's counsel
and in "comfort" letters delivered to the underwriters in underwritten
public offerings of securities;
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(l) advise each seller of Common, immediately after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for such purpose and
promptly use reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order should be issued;
(m) make available for inspection by the sellers of Common, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any
such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller or underwriter in
connection with such registration statement, all subject to such
limitations as the Company reasonably deems appropriate in order to
protect the Company's confidential or proprietary information; and
(n) notify each Holder of Registrable Common covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, 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.
5.2 Notwithstanding any contrary provision of this Section 5, the Company
shall not be required to use its best efforts to maintain the effectiveness of
any registration statement for a period in excess of 180 days or until the
sellers have sold or otherwise disposed of their Registrable Common registered
under such registration statement, whichever is earlier; provided, however, that
(i) such 180-day period shall be extended for a period of time equal to the
period the Holder refrains from selling any securities included in such
registration at the request of an underwriter participating in any distribution
pursuant thereto; and (ii) in the case of any registration of any Registrable
Common on Form S-3 which are intended to be offered on a continuous or delayed
basis, such 180-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Common are sold,
provided that Rule 415, or any successor rule under the Act, permit an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (I) includes any
prospectus required by Section 10(a)(3) of the Act or (II) reflects facts or
events representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (I) and (II) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act in the
registration statement.
5.3 It shall be a condition precedent to the inclusion of the Common of
any Holder in a registration effected pursuant to this Agreement that such
Holder shall (a) furnish to the Company such information regarding such Holder,
the Common of such Holder to be registered and the intended method of
disposition of such Common, and (b) execute such indemnities, underwriting
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agreements and other documents, as the Company shall reasonably request in order
to satisfy the requirements applicable to such registration.
SECTION 6. EXPENSES. The Company shall pay all expenses incurred in
effecting the two registrations of Common provided for in Section 2 of this,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, reasonable fees and
disbursements of a single counsel for the sellers selected by the Holders of
more than 50% of the Common subject to such registration, fees and underwriting
expenses (other than discounts and commissions), expenses of any audits incident
to or required by any such registration, fees and disbursements of all
independent certified public accounts (including the expenses relating to the
preparation and delivery of any special audit or "comfort" letters incident to
such registration) and expenses of complying with the securities or blue sky
laws of any jurisdictions pursuant to Section 5.1(g) of this Agreement. Except
as the Company and any sellers of securities in a registration may otherwise
agree, all expenses incurred due to any Holder's participation in any
registrations provided for in Section 3 of this Agreement shall be paid by the
sellers and all other persons whose securities are included in such
registration, including the Company if it shall be such a person, pro rata in
accordance with the offering price to the public of the securities of each such
or other person so included.
SECTION 7. INDEMNIFICATION.
7.1 In the event of any registration of any of its Registrable Common
under the Securities Act pursuant to this Agreement, the Company agrees, to the
extent permitted by law, to indemnify and hold harmless each seller of Common,
and each Affiliate of such seller, against any losses, claims, damages or
liabilities, joint or several, arising out of or based upon:
(1) any alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which such
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any summary
prospectus contained therein or any Securities being registered or any
amendment or supplement thereto, or
(2) any alleged omission to state in any such document a material
fact required to be stated therein or necessary to make the statements
therein not misleading,
except insofar as any such loss, claim, damage or liability is:
(a) caused by or contained in any information furnished in writing
to the Company by such seller expressly for use in connection with such
registration, or
(b) caused by or contained in such statements, or caused by such
omissions, based upon the authority of an expert as defined in the
Securities Act (but only if the
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Company had no ground to believe, and did not believe, that the statements
made on the authority of an expert were untrue or that there was an
omission to state a material fact), or
(c) caused by the use of a prospectus or preliminary prospectus or
any amendment or supplement thereto after receipt of notice from the
Company that it should no longer be used.
In connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each person who controls (within
the meaning of the Securities Act) such underwriters to the same extent as
provided above with respect to the sellers of Common. The Company shall
reimburse each person indemnified pursuant to this Section 7.1 in connection
with investigating or defending any loss, claim, damage, liability or action
indemnified against. The reimbursements required by this Section 7.1 shall be
made by periodic payments during the course of the investigation or defense, as
and when bills are received or expenses incurred. The indemnities provided
pursuant to this Section 7.1 shall remain in force and effect regardless of any
investigation made by or on behalf of the indemnified party and shall survive
transfer of Common by a seller.
7.2 In the event of any registration of any Common under the Securities
Act pursuant to this Agreement, each Holder agrees to furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any registration statement or prospectus in connection
with the registration or any amendment or supplement thereto.
7.3 To the extent permitted by law, and subject to the limitation set
forth in the last sentence of this Section 7.3, each Holder which is a seller of
Registrable Common in a registration pursuant to this Agreement agrees severally
and not jointly to indemnify and hold harmless the Company, its directors and
officers, each other seller of securities in such registration, each Affiliate
of each such other seller, and each Affiliate of the Company, against (a) any
losses, claims, damages or liabilities, joint or several, arising out of or
based upon:
(1) any alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which such
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any summary
prospectus contained therein, or any Securities being registered, or any
amendment or supplement thereto, or
(2) any alleged omission to state in any such document a material
fact required to be stated therein or necessary to make the statements
therein not misleading,
but only insofar as any such loss, claim, damage or liability is caused by or
contained in any information furnished in writing to the Company by the
indemnifying seller expressly for use in connection with such registration, and
excluding any such loss, claim, damage or liability which is caused by or
contained in such statements, or caused by such omissions, based upon the
authority of an expert as defined in the Securities Act (but only if the
indemnifying seller had no ground to
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believe, and did not believe, that the statements made on the authority of an
expert were untrue or that there was an omission to state a material fact), and
(b) any losses, claims, damages or liabilities, joint or several, arising out of
or based upon any failure by such seller to deliver a copy of the registration
statement or prospectus or any amendment or supplement thereto as required by
the Securities Act or the rules or regulations thereunder. In connection with an
underwritten offering each seller will indemnify such underwriters, their
officers and directors and each person who controls (within the meaning of the
Securities Act) such underwriters to the same extent as provided above with
respect to the Company and other sellers. Each seller shall reimburse each
person indemnified pursuant to this Section 7.3 in connection with investigating
or defending any loss, claim, damage, liability or action indemnified against.
The indemnities provided pursuant to this Section 7.3 shall remain in force and
effect regardless of any investigation made by or on behalf of the indemnified
party and shall survive transfer of Common by an indemnifying seller, and
transfer of other securities by any other indemnified seller.
7.4 Indemnification similar to that specified in Sections 7.1 and 7.3
(with such modifications as shall be appropriate) shall be given by the Company
and each Holder of any Common covered by any registration or other qualification
of Securities under any federal or state securities law or regulation other than
the Securities Act with respect to any such registration or other qualification
effected pursuant to this Agreement.
7.5 Promptly after receipt by an indemnified party under this Section 7 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 7, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to investigate and defend any such action; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by such indemnified
party or parties, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing 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, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 7, but 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 7.
SECTION 8. MARKETING RESTRICTIONS.
8.1 If:
A. a registration is to be made pursuant to a registration notice
under Section 2 of this Agreement, and
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B. the offering proposed to be made by the Holder or Holders for
whom such registration is to be made is to be an underwritten public
offering, and
C. the managing underwriters of such public offering furnish a
written opinion that the total amount of Securities to be included in such
offering would exceed the maximum number of shares of Common (as specified
in such opinion) which can be marketed at a price reasonably related to
the current market value of such Common and without otherwise materially
and adversely affecting such offering,
then the rights of the Holders for whom such registration is to be made, of the
other Holders, of the holders of other Securities having the right to include
Common in such registration and of the Company to participate in such offering
shall be in the following order of priority:
First: the Holders for whom such registration is to be made shall be
entitled to participate in such offering to the extent of such maximum
number of shares of Common which the managing underwriter desires to
include in such offering, or of the aggregate number of shares of Common
that all such Holders for whom such registration is to be made shall have
requested be registered, whichever is less, pro rata among themselves in
accordance with the number of shares of Common which each such Holder for
whom such registration is to be made shall have requested be registered;
and then
Second: if such maximum number of shares of Common which the
managing underwriter desires to include in such offering exceeds the
aggregate number of shares of Common that all such Holders for whom such
registration is to be made shall have requested be registered, the
Company, all other Holders, and all holders of other Securities having the
right to include such Securities in such registration shall be entitled to
participate pro rata in accordance with the number of shares proposed to
be registered by each of them;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition in a
transaction which would require registration under the Securities Act until the
expiration of 180 days after the effective date of the registration statement
filed in connection with such registration or such earlier time consented to by
the managing underwriter.
8.2 If:
A. any Holder of Common requests registration of Common under
Section 3 of this Agreement, and
B. the offering proposed to be made is to be an underwritten public
offering, and
C. the managing underwriters of such public offering furnish a
written opinion that the total amount of securities to be included in such
offering would exceed the maximum
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amount of Securities (as specified in such opinion) which can be marketed
at a price reasonably related to the then current market value of such
Securities and without materially and adversely affecting such offering,
then the rights of the Holders, of the holders of other Securities having the
right to include such Securities in such registration and of the Company to
participate in such offering shall be in the following order of priority:
First: the person or persons (including the Company in the case of a
primary offering) requesting such registration shall be entitled to
participate in accordance with the relative priorities, if any, that shall
exist among them; and then
Second: the Holders shall be entitled to participate in such
offering pro rata among themselves in accordance with the number of shares
of Common which each Holder shall have requested be registered; and then
Third: all other holders (including the Company, if such
registration shall have been requested by a person other than the Company)
of Securities having the right to include such Securities in such
registration shall be entitled to participate pro rata in accordance with
the number of shares proposed to be registered by each of them;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition in a
transaction which would require registration under the Securities Act until the
expiration of 180 days after the effective date of the registration statement
filed in connection with such registration or such earlier time consented to by
the managing underwriter.
8.3 In connection with any offering involving an underwriting of Common
pursuant to Section 3 of this Agreement, the Company shall not be required to
include any of the Common of a Holder in such offering unless such Holder agrees
to the terms of the underwriting agreed to between the Company and the
underwriter or underwriters selected by the Company.
SECTION 9. LOCKUP AGREEMENT. Each Holder agrees in connection with any
registration of any of the Company's Securities that, upon the request of the
Company or the underwriters managing any underwritten offering of the Company's
Securities, he, she or it will not sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Securities of the
Company (other than the Securities included in the registration) without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time (not to exceed 180 days) from the effective date of such
registration as the Company or the underwriters may specify; provided however,
that the provisions of this Section 9 shall not apply to any Securities which
the Holder thereof requested to be included with such registration but which
were specifically excluded therefrom pursuant to the cutback limitations of
Section 8 hereof.
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SECTION 10. COMPLIANCE WITH RULE 144. In the event that the Company (a)
registers a class of securities under Section 12 of the Exchange Act, (b) issues
an offering circular meeting the requirements of Regulation A under the
Securities Act or (c) commences to file reports under Section 13 or 15(d) of the
Exchange Act, then at the request of any Holder who proposes to sell securities
in compliance with Rule 144 of the Commission, the Company shall
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company
for the offer of its securities to the general public;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Common, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144
(at any time after 90 days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualified as a registrant whose securities may
be resold pursuant to Form S-3 (at any time after it so qualified), (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 any Holder of any
rule or regulation of the Commission which permits the selling of any such
securities without registration or pursuant to such form.
SECTION 11. ASSIGNABILITY OF REGISTRATION RIGHTS. The rights set forth in
this Agreement shall accrue to each subsequent Holder of Common who shall have
executed a written consent agreeing to be bound by the terms and conditions of
this Agreement as a party to this Agreement.
SECTION 12. DESIGNATION OF UNDERWRITER. In the case of any registration
effected pursuant to Section 2, the managing underwriters and any other
investment banking advisers to the Company shall be selected by Holders of not
less than 50% of the Common, and shall be reasonably acceptable to the Company.
SECTION 13. GRANT OF SUBSEQUENT REGISTRATION RIGHTS. The Company may grant
registration rights to subsequent investors in the Company only if such rights
are subordinate to the rights of the Holders pursuant to this Agreement or the
Holders' rights pursuant to this Agreement are waived pursuant to Section 14 of
this Agreement.
SECTION 14. MISCELLANEOUS.
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14.1 AMENDMENT. Any provision of this Agreement may be amended by a
written agreement signed by all of the following:
(a) the Company, and
(b) the Holders of Common equivalent to more than 75% of the
Registrable Common.
14.2 SEVERABILITY. In the event that any court or any governmental
authority or agency declares all or any part of any Section of this Agreement to
be unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate any other Section of this Agreement, and in the event that only a
portion of any Section is so declared to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate the balance of such
Section.
14.3 SUCCESSORS AND ASSIGNS. This Agreement is binding upon and inures to
the benefit of the Company, its successors and assigns, and the Holders. their
successors and assigns, heirs, and legal representatives.
14.4 NOTICES. All communications in connection with this Agreement shall
be in writing and shall be deemed properly given if hand delivered or sent by
overnight courier with adequate evidence of delivery or sent by registered or
certified mail, return receipt requested, at the last known address of record
for the Holders or the Company or such other addresses or persons as the
recipient shall have designated to the sender by a written notice given in
accordance with this Section. Any notice called for hereunder shall be deemed
given when received.
14.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio applicable to agreements between
Ohio residents entered into and to be performed entirely within Ohio.
14.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each which shall be deemed an original but all of which shall
together constitute one and the same instrument. A written consent executed
pursuant to Section 12 of this Agreement shall be deemed to be part of, and
constitute a counterpart of, this Agreement.
14.7 HEADINGS. The headings used herein are solely for the conveyance of
the parties and shall not serve to modify or interpret the text of the Sections
at the beginning of which they appear.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
The Company: SYNERGIS TECHNOLOGIES, INC.,
AN OHIO CORPORATION
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By:
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Its:
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Holders:
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