REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") made this 15th day of
March, 2000 by and between XXXXXX TECHNOLOGIES, INC., a Delaware corporation
("Xxxxxx" or the "Company") and DVI FINANCIAL SERVICES INC. ("DVI") and its
permitted designees (individually, a "Holder" and, collectively, the "Holders").
WHEREAS, Xxxxxx has agreed to issue to DVI warrants (the "Warrants") to
purchase shares of Xxxxxx Common Stock and to register the underlying shares of
its common stock to be issued pursuant to the exercise of such warrants pursuant
to the terms and conditions of this Agreement;
The parties hereto agree as follows:
ARTICLE 1
Section 1.1 Definitions.
Certain defined terms used herein and not otherwise defined shall have the
meanings for such terms as used in the Loan Agreement. In addition, as used in
this Agreement, the following capitalized terms have the following meanings:
Exchange Act shall mean, as of any date, the Securities Exchange Act of
1934, as amended, or any similar federal statute then in effect, and a reference
to a particular section thereof shall include a reference to the comparable
section, if any, of any similar federal statute and the rules and regulations
thereunder.
Holders shall mean any Holder and his permitted transferee or assignee
under the Loan Agreement.
Public Offering shall mean a public offering and sale of equity securities
of the Company or any successors thereto, pursuant to an effective registration
statement under the Securities Act.
Registrable Securities shall mean the Xxxxxx Common Stock issued pursuant
to the exercise of the Warrants.
As to any particular Registrable Securities, such securities shall cease to
be Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of under such registration statement,
(ii) such securities shall have become eligible for resale pursuant to Rule
144(k) and any restrictive legend on certificates representing such securities
shall have been removed, (iii) such securities shall have been otherwise
transferred or disposed of, and (x) new certificates therefor not bearing a
legend restricting further transfer shall have
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been delivered by the Company, and (y) subsequent transfer or disposition of
them shall not require their registration or qualification under the Securities
Act or any similar state law then in force or compliance with Rule 144, or (iv)
such securities shall have ceased to be outstanding. The Registrable Securities
held by a holder shall cease to be Registrable Securities if such Holder can
immediately sell all Registrable Securities held by such Holder pursuant to Rule
144.
Securities Act shall mean, as of any date, the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and in reference to a
particular section thereof shall include a reference to the comparable section,
if any, of any such similar federal statute and the rules and regulations
thereunder.
ARTICLE 2
Registration Rights
Section 2.1 Piggyback Registration Rights.
(a) If at any time or from time to time, the Company shall determine to
register any of its securities, for its own account or the account of any of its
stockholders (including any registration of its securities held by Greystone &
Co., pursuant to Greystone's demand therefor), other than a registration
relating solely to employee benefit plans, or a registration relating solely to
an SEC Rule 145 transaction, a transaction relating solely to the sale of debt
or convertible debt instruments or a registration on any form (other than Form
X-0, X-0 or S-3, or their successor forms) which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company will:
(i) give to the Holders written notice thereof as soon as practicable
prior to filing the registration statement; and
(ii) include in such registration and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within fifteen (15) days after receipt of such written
notice from the Company by the Holder.
(b) If the registration is for a registered Public Offering involving an
underwriting, the Company shall so advise the Holder as a part of the written
notice given pursuant to subsection 2.1(a)(i). In such event, the right of the
Holder to registration pursuant to Section 2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. Should
the Holder propose to distribute his securities through such underwriting, he
shall (together with the Company and the other Holders distributing their
securities through such underwriting) enter into an underwriting agreement with
the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 2.1, if a managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the number of
Registrable
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Securities to be included in the registration and underwriting. The Company
shall so advise the Holder and the other Holders distributing their securities
through such underwriting pursuant to piggyback registration rights similar to
this Section 2.1, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among the Holder and other Holders in proportion, as nearly as
practicable, to the respective percentage of the Company held by the Holder and
other securities held by other Holders at the time of the filing of the
registration statement assuming the exercise of all warrants held by DVI. If the
Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) All expenses for registrations pursuant to this Section 2.1, including,
without limitation, printing expenses, expenses of compliance with blue sky
laws, fees and disbursements of counsel for the Company and expenses of any
audits incidental to or required by any such Registration Statement, shall be
borne by the Company, except that (i) all expenses, fees and disbursements of
any counsel retained by the Holders shall be borne entirely by such Holders, and
(ii) all registration and filing fees and all brokerage and calling commissions
shall be borne by the Holders holding the securities registered pursuant to such
Registration Statement in pro rata fashion, according to the quantity of their
securities so registered.
Section 2.2 Indemnification.
(a) In the event of any registration of any securities of the Company under
the Securities Act pursuant to this Agreement, the Company will, and it hereby
agrees to, indemnify and hold harmless, to the extent permitted by law, each
Holder of any Registrable Securities covered by such registration statement, its
directors and officers or general and limited partners, as follows:
(i) against any and all loss, liability, claim, damage or expense
whatsoever arising out of or based upon an untrue statement or alleged
untrue statement of a material fact contained in any registration statement
(or any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
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(iii) against any and all expense reasonably incurred by them in
connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above; provided, however, that this
indemnity does not apply to any loss, liability, claim, damage or expense
to the extent arising out of an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any such Holder or to the extent such Holder fails to comply with
Section 2.2 (b). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Holder or any
such director, officer, general or limited partner, investment advisor or
agent, or controlling person and shall survive the transfer of such
securities by such Holder.
(b) The Company may require, as a condition to including any Registrable
Securities in any registration statement filed in accordance with this
Agreement, that the Company shall have received an undertaking reasonably
satisfactory to it from the Holder of Registrable Securities, to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
2.2(a)) the Company with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such Holder. In that event, the obligations
of the Company and such Holder pursuant to this Section 2.2 are to be several
and not joint; provided, however, that with respect to each claim pursuant to
this Section, the Company shall be liable for the full amount of such claim, and
each such Holder's liability under this Section 2.2 shall be limited to an
amount equal to the proceeds received by such Holder from the sale of
Registrable Securities held by such Holder pursuant to this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in this Section 2.2, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to such indemnifying party of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 2.2, except to the extent that the indemnifying party is actually
prejudiced by such failure to give timely notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim (in which case the
indemnifying party shall not be liable for the fees and expenses of more than
one firm of counsel for a majority of the Holders of Registrable Securities in
connection with any one action or separate but similar or related actions), the
indemnifying party will be entitled to participate in and to assume the
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defense thereof, jointly with any other indemnifying party similar notified, to
the extent that it may wish with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by such indemnifying party in connection
with the defense thereof.
Section 2.3 Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnity contemplated by Section 2.7 is for any reason not
available, the parties required to indemnify by the terms thereof shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company and
any Holder of Registrable Securities, except to the extent that contribution is
not permitted under Section 11(f) of the Securities Act. In determining the
amounts which the respective parties shall contribute, there shall be considered
the relative benefits received by each party from the offering of the
Registrable Securities (taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. The Company and
each Holder selling securities agree with each other that no seller of
Registrable Securities shall be required to contribute any amount in excess of
the amount such Holder would have been required to pay to an indemnified party
if the indemnity under Section 2.7(b) were available.
Section 2.4 Rule 144.
The Company covenants that it has filed all of the reports that were
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder, including periodic reports
under Section 13 or 15(d) of the Exchange Act (the "Reports") and that it will
timely file all Reports required thereafter. If at any time the Company ceases
to be required to file such periodic reports, the Company will, upon the request
of any Holder of Registrable Securities, make publicly available the information
specified in paragraph (c) of Rule 144 under the Securities Act, and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Without limitation to the foregoing,
the Company shall, promptly upon the request of any Holder, deliver to such
Holder a written statement as to whether it has complied with the requirements
of Section 13 or 15(d) of the Exchange Act during the 12 months preceding such
request. Each Holder may assign his rights under this Agreement to anyone to
whom he sells, transfers or assigns any of the Registrable Securities so long as
the new Holder is not and will not upon receipt of such Registrable Securities
become an affiliate of the Company.
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ARTICLE 3
Termination
Section 3.1 Certain Terminations.
(a) The provisions of this Agreement shall terminate on the date which is
ten (10) years from the date of this Agreement.
(b) Notwithstanding the foregoing, this Agreement shall in any event
terminate with respect to any Holder when such Holder no longer owns any
Registrable Securities.
ARTICLE 4
Miscellaneous
Section 4.1 Successors and Assigns.
The rights to have the Company register Registrable Securities pursuant to
this Agreement shall be automatically assigned by the Holder to any transferee
of all or any portion of such securities of Registrable Securities only if: (a)
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, (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (i) the
name and address of such transferee or assignee and (ii) the securities with
respect to which such registration rights are being transferred or assigned, (c)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws, and (d) at or before the time the
Company received the written notice contemplated by clause (b) of this sentence
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein. In the event of any delay in filing the
Registration Statement as a result of such assignment, the Company shall not be
liable for any damages arising from such delay.
Section 4.2 Amendment and Modification; Waiver of Compliance; Conflicts.
(a) This Agreement may be amended only by a written instrument duly
executed by DVI and Xxxxxx.
(b) Except as otherwise provided in this Agreement, any failure of any of
the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel
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with respect to, any subsequent or other failure.
Section 4.3 Notices.
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex or telecopy
(with such telex or telecopy confirmed promptly in writing sent by first class
mail), or first class mail, or other similar means of communication, as follows:
to the Company:
Xxxxxx Technologies, Inc.
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer or President
to the Holder: DVI Financial Services Inc.
000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(after July 11, 2000, to:
0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 18929)
Attn: President
with a copy to: DVI, Inc.
000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(after July 11, 2000, to:
0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 18929)
Attn: Legal Department
All such communications shall be deemed to have been given, delivered or
made when so delivered by hand or sent by telex (answer back received) or
facsimile, or five business days after being so mailed.
Section 4.4 Headings.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 4.5 Litigation.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY
BREACH OF THIS AGREEMENT, THE NON-BREACHING PARTY WOULD BE IRREPARABLY HARMED
AND COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY
OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, THE PARTIES
SHALL BE ENTITLED TO SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE.
EACH PARTY AGREES THAT JURISDICTION AND VENUE WILL BE PROPER IN NEW YORK AND
WAIVES ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. EACH PARTY WAIVES
PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING
AN ACTION OR PROCEEDING SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL
JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO THE PARTY AT THE
ADDRESS SET FORTH IN THIS AGREEMENT, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE
STATE OF NEW YORK OR THE UNITED STATES. THE CHOICE OF FORUM SET FORTH IN THIS
SECTION 4.5 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT
OBTAINED IN ANY OTHER FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER APPROPRIATE JURISDICTION.
Section 4.6 No Strict Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction will be applied against any person.
Section 4.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
DVI FINANCIAL SERVICES, INC. XXXXXX TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxx, Xx. /s/ Xxxxx Xxxxxx
--------------------------------------- ------------------------------------
By: XXXXXX X. XXXXX, XX. By: Xxxxx Xxxxxx
Title: VICE PRESIDENT Title: CEO
CHIEF CREDIT OFFICER
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