EXHIBIT 10.152
DISPLAY TECHNOLOGIES, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT, made and entered into
this 17th day of January, 2001, by and among DISPLAY TECHNOLOGIES, INC., a
Nevada corporation (the "COMPANY"), and the entities listed on Exhibit A hereto
(the "INVESTORS"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Investors have entered into that certain
Agreement to Provide Guaranty dated January ___, 2001, (the "PURCHASE
AGREEMENT"), pursuant to which the Company is issuing to the Investors 50,000
shares ("PREFERRED SHARES") of the Company's Series A-1 Convertible Preferred
Stock, $.001 par value per share, and Warrants ("WARRANTS") to purchase
3,000,000 shares (subject to adjustment) of Common Stock, $0.001 par value per
share ("COMMON STOCK"); and
WHEREAS, the obligation of the Investors to consummate the transaction
contemplated by the Purchase Agreement is conditioned upon, among other things,
the amendment and restatement of the existing Investors' Rights Agreement
between the parties dated July 30, 1999 (the "PRIOR AGREEMENT") to cover shares
of Common Stock issuable upon conversion of the Preferred Stock and exercise of
the Warrants;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties, intending to be legally
bound, hereby amend and restate the Prior Agreement to read in its entirety as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
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shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
successor agency.
"REGISTRABLE SECURITIES" shall mean the shares of the Company's Common
Stock issuable upon the conversion of the Preferred Shares, the exercise of the
Warrants, or the exercise of the warrants ("PRIOR WARRANTS") issued to the
Investors pursuant to the Securities Purchase Agreement dated July 30, 1999.
"REGISTRATION STATEMENT" shall mean a registration statement complying
with the requirements of the registration form of the Commission on which it is
filed, which shall be a form allowable for the registration of the Registrable
Securities subject thereto.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as hereinafter defined), and the declaration
or ordering of the effectiveness of such registration statement.
"HOLDER" shall mean each of the Investors and any transferee of
Registrable Securities who, pursuant to SECTION 12 below, is entitled to
registration rights hereunder. "1934 ACT" shall mean the Securities Exchange Act
of 1934, as amended.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in SECTION 3 hereof (or any similar
legend).
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with SECTIONS 5 and 6 hereof, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, reasonable fees and
disbursements of one counsel for the Holders, blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the securities registered by the Holders.
2. RESTRICTIONS ON TRANSFERABILITY. The Restricted Securities shall not be
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transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of Restricted Securities held by such Holder to agree to take and
hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
3. RESTRICTIVE LEGEND. Each certificate representing preferred shares or
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shares of Common Stock issued upon conversion of Preferred Shares or the
exercise of Warrants or Prior Warrants shall (unless otherwise permitted by the
provisions of SECTION 4 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, ("FEDERAL ACT") OR THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT, AS AMENDED, ("FLORIDA ACT") AND HAVE
NOT BEEN REGISTERED UNDER ANY OTHER STATE SECURITIES LAW. THESE SHARES MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS A REGISTRATION STATEMENT
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WITH RESPECT TO THESE SHARES IS EFFECTIVE UNDER THE FEDERAL ACT, THE FLORIDA
ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR SUCH REGISTRATION IS
NOT REQUIRED.
4. NOTICE OF PROPOSED TRANSFERS. The Holder of each certificate representing
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Restricted Securities by acceptance thereof agrees to comply in all respects
with the provisions of this SECTION 4. Prior to any proposed transfer of any
Restricted Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the Holder thereof shall give
written notice to the Company of such Holder's intention to effect such
transfer. Each such notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and shall, if the Company so requests,
be accompanied (except in transactions in compliance with Rule 144) by a written
opinion of legal counsel who shall be reasonably satisfactory to the Company,
addressed to the Company and reasonably satisfactory in form and substance to
the Company's counsel, to the effect that the proposed transfer of the
restricted securities may be effected without registration under the Securities
Act, whereupon the Holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the Holder to the Company; provided, however, that no opinion need
be obtained with respect to a transfer to an "AFFILIATE" of a Holder of
Restricted Securities as that term is defined in Rule 405 promulgated by the
Commission under the Securities Act, or the spouse, children, grandchildren, or
spouse of such children or grandchildren of any Holder or to trusts for the
benefit of any Holder or such persons, if the transferee agrees to be subject to
the terms hereof. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth in SECTION 3 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for the Company such legend is
not required in order to establish compliance with any provisions of the
Securities Act.
5. REQUIRED REGISTRATION. Within 60 days following the date of a request to
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do so by the Investors, the Company shall file with the Commission a
Registration Statement on Form S-3 (or such other form as may be available if
Form S-3 is not) under the Securities Act registering for public resale by the
Holders all of the Registrable Securities. The Company shall use its reasonable
best efforts to cause the Registration Statement to become effective and to be
approved by such other governmental agencies or authorities as may be necessary
to enable the Holders to publicly offer and sell the Registrable Securities
immediately upon the conversion of the Preferred Shares or exercise of Warrants
or Prior Warrants. The Registration Statement shall be filed as a "shelf
registration" pursuant to Rule 415 of the Securities Act, providing for the sale
of Registrable Shares included therein on a delayed or continuous basis.
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6. COMPANY REGISTRATION.
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(a) If, prior to the effectiveness of a Registration Statement covering
all the Registrable Securities pursuant to SECTION 5, the Company shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders, other than a registration relating
solely to employee benefit plans, or a registration relating solely to a
transaction covered by Rule 145 of the Commission, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made within 20 days after receipt of
such written notice from the Company, by any Holder or Holders,
provided that to the extent so advised by the underwriters, the Company
may limit the amount of Registrable Securities to be included by the
Holders in any registration and to the extent so advised by the
underwriters, exclude all Registrable Securities entirely from the
registration.
(b) In any registration in which the Company limits the number of
Registrable Securities included therein pursuant to SECTION 6(a)(ii), the amount
of Registrable Securities of Holders which are included in such registration
shall be allocated to the Holders in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by each of such Holders as
of the date of the notice given pursuant to SECTION 6(a)(i) and the Holders
shall be entitled to include Registrable Securities pro rata based on total
Common Stock ownership if any shareholders are allowed to include shares in the
offer.
7. EXPENSES OF REGISTRATION. The Company will pay all Registration Expenses
incurred in connection with the registration of Registrable Securities pursuant
to SECTIONS 5 and 6. All Selling Expenses relating to Registrable Securities
registered by the Holders shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered.
8. REGISTRATION PROCEDURES. In the case of each registration, qualification,
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or compliance effected by the Company pursuant to this Agreement the Company
will keep each Holder advised in writing as to the initiation of each
registration, qualification, and compliance and as to the completion thereof. At
its expense the Company will:
(a) Keep such registration, qualification, or compliance effective for
a period of 120 days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided, however, that in the case of any registration of
Registrable Securities which are intended to be offered on a continuous or
delayed basis (including the registration to be effected under SECTION 5), the
registration statement shall be kept effective until all such Registrable
Securities are sold.
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(b) Furnish such number of prospectuses and other documents incident
thereto as Holders from time to time may reasonably request in order to
facilitate the disposition of securities owned by them.
(c) Prepare and file with the Commission as soon as practicable 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 Securities Act with respect to the disposition
of all securities covered by such registration statement.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided 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.
(e) 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. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities 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 light of the circumstances then existing.
9. INDEMNIFICATION.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification, or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification, or compliance, or based on any 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 any violation by the Company of any rule or
regulation promulgated under the Securities Act or the 1934 Act applicable to
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the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, and partners, and
such Holder's legal counsel and independent accountants, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing, or defending any such claim, loss,
damage, liability, or action, provided that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability, or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
such Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification, or
compliance is being effected, indemnify the Company, each of its directors and
officers, and its legal counsel and independent accountants, each underwriter,
if any, of the Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses,
damages, and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular, or
other document or any amendment or supplement thereto, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, legal counsel, independent
accountants, underwriters, or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
prospectus, offering circular, or other document or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company by an instrument duly executed by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of such
Holder hereunder shall be limited to an amount equal to the net proceeds before
expenses and commissions to each such Holder of Registrable Securities sold as
contemplated herein.
(c) Each party entitled to indemnification under this SECTION 9 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
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approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this SECTION 9 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense 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 statement or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
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.
10. INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities
---------------------
included in any registration shall furnish to the Company such information
regarding such Holder or Holders and the distribution proposed by such Holder or
Holders as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this agreement.
11. RULE 144 REPORTING. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities 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 under the Securities Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act;
(c) Furnish to Holders of Registrable Securities forthwith upon
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the 1934 Act,
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a copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as a Holder of Registrable Securities
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
12. TRANSFER OF REGISTRATION RIGHTS. The right to cause the Company to
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register securities granted the Holders hereunder may be assigned to a
transferee or assignee of the Registrable Securities. In addition, rights to
cause the Company to register Registrable Securities may be freely assigned (a)
to any constituent partner, active or retired, of a Holder of Registrable
Securities, where such Holder is a partnership, (b) to the estate of any such
partner, or to his or her spouse or to the siblings, lineal descendants or
ancestors of such partner by gift, will or intestate succession, (c) to any
affiliate (as that term is defined in Rule 405 promulgated by the Commission
under the Securities Act), or (d) to the spouse, children, grandchildren or
spouse of such children or grandchildren of any Holder or to trusts for the
benefit of any Holder or such persons.
13. PREEMPTIVE RIGHTS. (a) Except as set forth in subsection (c) hereof, the
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Company shall not issue or sell any shares of Common Stock, Preferred Stock, or
other securities, any rights or options to purchase Common Stock, Preferred
Stock, or other securities, or any debt or shares convertible into or
exchangeable for Common Stock, Preferred Stock, or other securities, whether now
or hereafter authorized and whether unissued or in the treasury (collectively,
"PREEMPTIVE SHARES"), unless each Investor shall first have been given the right
to acquire, at a price no less favorable than that at which such Preemptive
Shares are to be offered to others, a portion of the Preemptive Shares, as
provided in subsection (b) below.
(b) The Company shall give each Investor prior written notice of any
proposed issuance or sale described in subsection (a), including the price at
which such securities are to be offered and the time period for the offering
(which shall not exceed four months), and each Investor shall have twenty days
from the giving of such notice within which to elect to acquire that portion of
the Preemptive Shares being offered equal to its percentage ownership of the
outstanding Common Stock (which shall be determined as if all outstanding
Preferred Shares had been converted into Common Stock and all Warrants and Prior
Warrants exercised) immediately preceding such issuance or sale. Upon expiration
of such twenty-day period, the Company shall send a notice to each Investor
setting forth which Investors have exercised such preemptive rights ("PURCHASING
INVESTORS") and which have not exercised such rights, and the number of
Preemptive Shares as to which preemptive rights were and were not exercised.
Purchasing Investors shall then have an additional ten days in which to elect to
acquire additional Preemptive Shares as to which preemptive rights were not
exercised. Such additional number of Preemptive Shares shall be allocated among
such Purchasing Investors (i) as nearly as possible in proportion to each
Purchasing Investor's percentage ownership of outstanding Common Stock (which
shall be determined as if all outstanding Preferred Shares had been converted
into Common Stock and all Warrants and Prior Warrants exercised), (ii)
thereafter, to those Purchasing Investors that elected to acquire a greater
number of Preemptive Shares than allocated to such Purchasing Investors under
clause (i), in proportion to the number of shares of Common Stock (determined as
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in clause (i)) held by each such Purchasing Investor, and (iii) thereafter, in
like manner until all such additional Preemptive Shares have been allocated;
provided, however, in no event shall any Purchasing Investor be allocated a
greater number of Preemptive Shares than such Purchasing Investor has elected to
purchase. If any transaction specified by the Company in any such notice shall
not be consummated within four months from the date of such notice, the Company
shall again comply with the provisions of this SECTION 13 with respect to such
transaction, and all Investors shall again have preemptive rights hereunder with
respect to the transaction, regardless of whether any such Investor had
previously exercised or failed to exercise such rights. Any purchase of
securities pursuant to the exercise of preemptive rights shall be consummated
simultaneously with, and shall be conditioned upon, consummation of the
transaction proposed by the Company.
(c) If some, but not all, of the securities offered by the Company in a
transaction for which a notice has been given pursuant to subsection (b) above
remain unsold by the end of the period specified in the notice, then the unsold
securities shall be offered, at a price and on terms no less favorable than
those pertaining to securities sold in the transaction, to those Investors who
purchased Preemptive Shares. The procedure set forth in subsection (b) shall be
followed to allocate the available securities among the Investors entitled to
purchase them hereunder.
(d) The restrictions contained in, and preemptive rights granted under,
this SECTION 13 shall not apply to shares issued or issuable by the Company (i)
in connection with a merger or consolidation of the Company into or with another
corporation or a business combination effected through an exchange of the
Company's shares for the securities of another Company, (ii) upon conversion of
Preferred Shares or exercise of Warrants or Prior Warrants, (iii) to a
Purchasing Investor pursuant to this SECTION 13, (iv) to employees pursuant to
an incentive stock option plan, or (v) through a registered underwritten public
offering. The rights granted to the Investors under this SECTION 13 may be
waived for all such Investors with respect to any Preemptive Shares by a written
waiver executed by the Investors possessing 51% of the total voting power of the
outstanding Preferred Shares.
14. OBSERVATION RIGHTS. (a) The Investors shall be given a copy of any and
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all notices or other written materials sent to the Board of Directors of the
Company at the same time as such materials are given to the members of the Board
of Directors, including without limitation, notices of meetings, written
consents to be signed by members of the Board of Directors, and financial or
other reports.
(b) The Investors shall have the right to have one representative
attend all meetings of the Board of Directors or any of its committees
(including any adjournments thereof) either in person or by such other method as
shall be allowed under the Bylaws for directors. No meeting of the Board of
Directors or any committee thereof shall be conducted unless such representative
of the Investors shall have been given prior written notice of such meeting at
least two days prior to the date of such meeting. Such representative shall have
the right to speak at such meetings and to make such suggestions and requests
during such meetings as such representative deems appropriate, and the Board of
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Directors shall consider such suggestions and requests in good faith. Except
when the attorney-client privilege would be compromised in the reasonable
opinion of counsel for the Company, the Company hereby waives any right to
exclude such representative from any such meeting or any right, whether legal,
procedural, or otherwise, to conduct any such meetings in executive session or
otherwise to the exclusion of such representative. Exercise of the rights
granted in this subsection (b) shall not be, and shall not be deemed to be,
participation by the Investors on the Board of Directors of the Company.
(c) In addition to the foregoing, the Investors shall have the right to
review any material consent resolutions of the Board of Directors prior to the
execution thereof, and to make such suggestions and requests with respect
thereto as the Investors deem appropriate.
15. GOVERNING LAW. This Agreement and the legal relations between the
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parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Florida, without giving effect to the conflict of
laws provisions thereof. The parties hereto agree to submit to the jurisdiction
of the federal and state courts of the State of Florida with respect to the
breach or interpretation of this Agreement or the enforcement of any and all
rights, duties, liabilities, obligations, powers, and other relations between
the parties arising under this Agreement.
16. ENTIRE AGREEMENT. This Agreement supersedes the Prior Agreement and
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constitutes the full and entire understanding and agreement between the parties
regarding rights to registration. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
17. NOTICES, ETC. All notices and other communications required or permitted
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hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person or by courier service or five
days after deposit with the united states mail, by registered or certified mail,
postage prepaid, addressed (a) if to an investor, to investor's address set
forth in exhibit a, or at such other address as such investor shall have
furnished to the company in writing, or (b) if to any other holder of any
registrable securities, to such address as such holder shall have furnished the
company in writing, or, until any such holder so furnishes an address to the
company, then to and at the address of the last holder of such registrable
securities who has so furnished an address to the company, or (c) if to the
company, to its address set forth in the purchase agreement to the attention of
the corporate secretary, or at such other address as the company shall have
furnished to the holders.
18. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all parties hereto,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
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19. AMENDMENT. Any provision of this Agreement may be amended, waived or
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modified upon the written consent of the (i) Company, and (ii) Holders of
two-thirds of the shares of Registrable Securities (treating the Preferred
Shares as converted and Warrants and Prior Warrants as exercised and excluding
for all purposes in such computation any Common Stock resold to the public). Any
Holder may waive any of its rights or the Company's obligations hereunder
without obtaining the consent of any other person.
20. TERM. This Agreement shall remain in full force and effect until the
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Investors no longer hold any Registrable Securities or seven years from the date
hereof, whichever occurs first.
IN WITNESS WHEREOF, the parties hereto have executed this Investors' Rights
Agreement as of the date first set forth above.
(Signatures on next page)
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COMPANY:
DISPLAY TECHNOLOGIES, INC.
By: /s/ J. Xxxxxxx Xxxxxxxx
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Name:
---------------------------------------------
Title: President
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INVESTORS:
XXXXXXX XXXXX CAPITAL
PARTNERS, L.P.,
a Delaware limited partnership
By: RJC PARTNERS, L.P., a Delaware limited
partnership, its General Partner
By: RJC PARTNERS, INC.
a Delaware corporation, its General Partner
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, President
RENAISSANCE CAPITAL GROWTH &
INCOME FUND III, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
---------------------------------------------
Title: President
--------------------------------------------
RENAISSANCE US GROWTH & INCOME
TRUST PLC
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxx, Director
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EXHIBIT A
SCHEDULE OF INVESTORS
NAME AND ADDRESS OF INVESTORS
_____________________________________________________
_____________________________________________________
XXXXXXX XXXXX CAPITAL PARTNERS, L.P.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Facsimile: 000-000-0000
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000-XX00
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
RENAISSANCE US GROWTH & INCOME
TRUST PLC
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000-XX00
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
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