EXHIBIT 8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of February 22, 2005 (this
"AGREEMENT"), is made between Xxxxxxx Imaging Corporation, a Delaware
corporation (the "COMPANY"), and ComVest Investment Partners II LLC, a Delaware
limited liability company ("COMVEST").
RECITALS
WHEREAS, pursuant to a Note and Warrant Purchase Agreement, dated as of
the date hereof, between the Company and ComVest (the "PURCHASE AGREEMENT"), the
Company has agreed to issue to ComVest a warrant (the "WARRANT") to purchase up
to 2,000,000 shares (the "SHARES") of common stock of the Company, $0.01 par
value per share ("COMMON STOCK"), in accordance with the terms of the Purchase
Agreement and the Warrant.
WHEREAS, to induce ComVest to execute and deliver the Purchase
Agreement, the Company has agreed to provide to ComVest and its permitted
assigns certain registration rights under the Securities Act (as defined below),
and applicable state securities laws.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the Company and ComVest hereby agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "AGREEMENT" shall have the definition provided in the
introductory paragraph.
(b) "BLACKOUT PERIOD" shall have the definition provided in
Section 2(a).
(c) "BUSINESS DAYS" shall mean any day that is not a Saturday,
a Sunday or other day on which banks are required or authorized by law to be
closed in The City of New York or the City of Denver.
(d) "CLAIMS" shall have the definition provided in Section
8(a).
(e) "COMMON STOCK" shall have the definition provided in the
Recitals.
(f) "COMPANY" shall have the definition provided in the
introductory paragraph.
(g) "COMVEST" shall have the definition provided in the
introductory paragraph.
(h) "COMVEST INDEMNIFIED PERSON" shall have the definition
provided in Section 8(a).
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(i) "EFFECTIVE DATE" means the day that the Registration
Statement required to be filed under Section 2 is declared effective by the SEC.
(j) "FILING DATE" means the day that the Registration
Statement required to be filed under Section 2 is filed with the SEC.
(k) "HOLDER" means a holder or holders of Registrable
Securities.
(l) "OUTSIDE DATE" shall have the definition provided in
Section 2(a).
(m) "PIGGYBACK SALE" shall have the definition provided in
Section 3.
(n) "PURCHASE AGREEMENT" shall have the definition provided in
the Recitals.
(o) "REGISTRATION DOCUMENTS" shall have the definition
provided in Section 2(e).
(p) "REGISTRABLE SECURITIES" shall mean (i) the Shares and the
shares of Common Stock or other securities issued or issuable to ComVest or its
permitted transferee or designee (x) upon exercise of the Warrant, or (y) upon
any distribution with respect to, any exchange for or any replacement of such
Warrant, or (z) upon any conversion, exercise or exchange of any securities
issued in connection with any such distribution, exchange or replacement; (ii)
securities issued or issuable upon any stock split, stock dividend,
recapitalization or similar event with respect to such shares of Common Stock;
and (v) any other security issued as a dividend or other distribution with
respect to, in exchange for, or in replacement of, the securities referred to in
the preceding clauses.
(q) "REGISTRATION PERIOD" shall mean, with respect to a
Registration Statement, the period of time from the effective date of such
Registration Statement until such date as is the earlier of (i) the date on
which all of the Registrable Securities covered by such Registration Statement
shall have been sold or (ii) the date on which the Registrable Securities under
such Registration Statement (in the opinion of counsel to ComVest and reasonably
acceptable to legal counsel for the Company) may be immediately sold without
restriction (including without limitation as to volume restrictions by each
holder thereof) without registration under the Securities Act.
(r) "REGISTRATION STATEMENT" means a registration statement or
registration statements of the Company filed under the Securities Act covering
Registrable Securities.
(s) "RULE 144" shall have the definition provided in Section
8.
(t) "SEC" means the U.S. Securities and Exchange Commission,
or any successor thereto.
(u) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(v) "SHARES" shall have the definition provided in the
Recitals.
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(w) "TRANSACTION DOCUMENTS" shall mean this Agreement, the
Purchase Agreement, the Notes (as defined in the Purchase Agreement) and the
Warrant.
(x) "VIOLATIONS" shall have the definition provided in Section
8(a).
(y) "WARRANT" shall have the definition provided in the
Recitals.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Purchase Agreement.
2. SHELF REGISTRATION.
(a) The Company shall prepare and file with the SEC, not later
than four (4) months from the date of this Agreement, a Registration Statement
or Registration Statements (as necessary) on a form that is appropriate under
the Securities Act (and, if available, pursuant to Rule 415), covering the
resale of all of the Registrable Securities, in an amount sufficient to cover
the resale of the Shares and additional shares of Common Stock issuable pursuant
to the anti-dilution provisions of the Warrant.
(b) The Company shall use all reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event not earlier than
the date that is six months from the date of this Agreement but not later than
the date that is eight (8) months after the date of this Agreement (the "OUTSIDE
DATE").
(c) If (i) the Registration Statement is not declared
effective by the Outside Date or (ii) the Registration Statement required to be
filed by the Company pursuant to this Section shall cease to be available for
use by ComVest as a selling stockholder (x) as provided under Section 2(f)
hereof where such unavailability continues for a period in excess of five (5)
days beyond the allowed time period or (y) for any other reason including,
without limitation, by reason of a stop order, a material misstatement or
omission in such Registration Statement or the information contained in such
Registration Statement having become outdated and continues to be unavailable
for a period in excess of ten (10) days, and ComVest is not in material breach
of its obligations under this Agreement or any of the Transaction Documents,
then the Company shall pay to ComVest a cash fee equal to $50,000 for each
30-day period or part thereof during which any of the events described in
clauses (i) or (ii) above occurs and is continuing (the "BLACKOUT PERIOD"). Each
such payment shall be due within five days of the end of each 30-day period of
the Blackout Period until the termination of the Blackout Period and within five
(5) days after such termination. Such payments shall constitute ComVest's
exclusive remedy for such events. The Blackout Period shall terminate upon the
effectiveness of the Registration Statement in the case of clause (i) above and
upon notice from the Company that the Registration Statement is again available
in the case of clause (ii) above.
(d) The Company shall use its best efforts to keep each
Registration Statement effective at all times during the applicable Registration
Period.
(e) If any offering pursuant to a Registration Statement,
pursuant to Section 2 hereof, involves an underwritten offering (which may only
be with the consent of the Company),
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ComVest shall have the right to select legal counsel and an investment banker or
bankers and manager or managers to administer to the offering, which investment
banker or bankers or manager or managers shall be reasonably satisfactory to the
Company.
(f) If the Registrable Securities are registered for resale
under an effective Registration Statement, ComVest shall cease any distribution
of such shares under such Registration Statement:
(i) for a period of up to six (6) months if (x) such
distribution would require the public disclosure of material non-public
information concerning any transaction or negotiations involving the Company or
any of its affiliates that, in the reasonable judgment of the Company's Board of
Directors, would materially interfere with such transaction or negotiations or
(y) such distribution would otherwise require premature disclosure of
information that, in the reasonable judgment of the Company's Board of
Directors, would adversely affect or otherwise be detrimental to the Company;
provided that the Company shall not invoke this clause (i) more than twice in
any twelve (12) month period and only for an aggregate of six (6) months in any
such twelve (12) month period; and
(ii) not more than once in any 12-month period, for
up to 30 days, upon the request of the Company if the Company proposes to file a
registration statement under the Securities Act for the offering and sale of
securities for its own account in an underwritten offering and the managing
underwriter therefor shall advise the Company in writing that in its opinion the
continued distribution of the Registrable Securities would adversely affect the
offering of the securities proposed to be registered for the account of the
Company.
The Company shall promptly notify ComVest at such time as (i) such transactions
or negotiations have been otherwise publicly disclosed or terminated, or (ii)
such non-public information has been publicly disclosed or counsel to the
Company has determined that such disclosure is not required due to subsequent
events.
(g) The Company shall permit ComVest's counsel to review such
Registration Statement, and all amendments and supplements thereto (as well as
all requests for acceleration or effectiveness thereof and any correspondence
between the Company and the SEC relating to the Registration Statement)
(collectively, the "REGISTRATION DOCUMENTS") a reasonable period of time prior
to their filing with the SEC, and not file (or send) any Registration Documents
in a form to which such counsel reasonably objects and will not request
acceleration of such Registration Statement without prior notice to such
counsel. The sections of such Registration Statement covering information with
respect to ComVest, ComVest's beneficial ownership of securities of the Company
or ComVest's intended method of disposition of Registrable Securities shall
conform to the information provided to the Company by ComVest.
3. PIGGYBACK SALES. At any time after the date that is six months from
the date hereof, whenever the Company proposes to register any Common Stock
under the Securities Act, either in a primary distribution by the Company or a
secondary distribution by any of its security holders, the Company will give
prompt written notice to ComVest of its intention to effect such a registration
and will include in the offering all Registrable Securities with respect to
which the Company has received a written request for inclusion in the
registration within fifteen (15)
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Business Days after receipt of the Company's notice (a "PIGGYBACK SALE").
Notwithstanding the foregoing, the Company may withdraw any registration
statement referred to in this Section 3 without thereby incurring liability to
ComVest.
4. RESTRICTIONS ON PIGGYBACK SALE RIGHTS.
(a) ComVest will not be entitled to effect a Piggyback Sale
with respect to a registration statement (i) on Form S-4 or Form S-8 under the
Securities Act (or any successor or replacement forms) or (ii) in connection
with a registration the primary purpose of which is to register debt securities.
(b) If either: (i) the managing underwriter, in the case of an
underwritten registration under which a Piggyback Sale is requested, advises the
Company that in its opinion or (ii) in the case of a registration not being
underwritten, for which a Piggyback Sale is requested, the Company reasonably
and in good faith determines, that the number of securities proposed to be sold
by the Company in such registration plus the number of shares subject to the
Piggyback Sale request plus the securities of all other selling security holders
to be included in such registration exceeds the number which can be effectively
sold in such offering (the "MAXIMUM NUMBER OF SHARES"), the Company will include
in such registration first the securities the Company proposes to register,
second the Registrable Securities for which the Piggy Back Sale is requested and
third the securities of the other selling security holders, up to the Maximum
Number of Shares. The Company will not hereafter enter into any agreement which
is inconsistent with the rights of priority provided for in this paragraph (b).
5. OBLIGATIONS OF THE COMPANY. With respect to any registration of
Registrable Securities required by Section 2 or Section 3, the Company will use
its reasonable best efforts to effect the registration in accordance with the
intended method of disposition thereof and in connection with the registration
of the Registrable Securities, to use its reasonable best efforts to:
(a) Prepare and file with the SEC a Registration Statement for
such Registrable Securities and such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectuses
used in connection with the Registration Statement, as may be necessary to keep
the Registration Statement effective at all times during the Registration
Period, and, during the applicable Registration Period, to comply with the
provisions of the Securities Act with respect to the disposition of all of the
Registrable Securities until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Registration Statement;
(b) Promptly furnish, after such Registration Statement is
prepared, filed with the SEC, publicly disseminated and distributed and received
by the Company, to ComVest and its legal counsel, a copy of any such
Registration Statement, each preliminary prospectus, each final prospectus, and
all amendments and supplements thereto and such other documents as ComVest may
reasonably request in order to facilitate the disposition of its Registrable
Securities;
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(c) As soon as practicable for the Company and its counsel,
but no later than two (2) Business Days after receipt thereof, furnish to
ComVest and its counsel copies of all correspondence between the Company and the
SEC with respect to any Registration Statement or amendment or supplement
thereto filed pursuant to this Agreement;
(d) (i) Register and qualify the Registrable Securities
covered by the Registration Statements under such other securities or blue sky
laws, if applicable, of such United States' jurisdictions as ComVest may
reasonably request, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
relevant times during the Registration Period, (iii) take such other actions as
may be necessary to maintain such registrations and qualifications in effect at
all relevant times during the Registration Period and (iv) take all other
actions necessary or advisable to qualify the Registrable Securities for sale in
such jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) List such securities on any national securities exchanges
or quotation systems on which the Common Stock of the Company is then listed,
and file any filings required by such securities exchanges or systems;
(f) Notify ComVest and (if requested by ComVest) confirm such
advice in writing, (i) when or if the prospectus or any prospectus supplement or
post-effective amendment has been filed with the SEC, and, with respect to any
Registration Statement or any post-effective amendment, when the same has been
declared effective by the SEC, (ii) of any request by the SEC for amendments or
supplements to a Registration Statement or the prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and (v) 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;
(g) If (i) the matters contemplated by clause (iii) of
paragraph (f) above occur, prevent the issuance or obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement at the
earliest possible time and (ii) any fact contemplated by clause (v) of paragraph
(f) above shall exist, promptly prepare a supplement or post-effective amendment
to the Registration Statement or the related prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchaser of the Registrable Securities, the
prospectus will not contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not misleading;
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(h) If the Company has consented to an underwritten offering
and such offering is underwritten, at the request of ComVest, furnish on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to ComVest, stating that such registration statement is
effective under the Securities Act and that (A) to the knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act and (B) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements or other
financial data contained therein) and (ii) a letter dated such date from the
Company's independent public accountants addressed to the underwriters and to
ComVest, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five (5) Business
Days prior to the date of such letter) with respect to such registration as such
underwriters may reasonably request;
(i) Cooperate with ComVest to facilitate the timely
preparation and delivery of certificates for the Registrable Securities offered
and sold pursuant to the Registration Statement and to enable such certificates
for the Registrable Securities to be issued in such denominations or amounts, as
the case may be, as ComVest may reasonably request, and registered in such names
as ComVest may request; and, within five (5) Business Days after receiving
notice from ComVest or its representatives of a sale of Registrable Securities
under the Registration Statement, the Company shall deliver, and shall cause
legal counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to ComVest) an appropriate instruction and
opinion of such counsel, satisfactory to the Company, and ComVest and its legal
counsel;
(j) Enter into customary agreements (including, in the case of
an underwritten offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in connection therewith:
(i) make such representations and warranties to
ComVest and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings;
(ii) to the extent requested and customary for the
relevant transaction, enter into a securities sales agreement with ComVest and
such representative of ComVest as ComVest shall select relating to the
Registration and providing for, among other things, the appointment of such
representative as agent for ComVest for the purpose of soliciting purchases
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of Registrable Securities, which agreement shall be customary in form, substance
and scope and shall contain customary representations, warranties and covenants;
and
(iii) deliver such customary documents and
certificates as may be reasonably requested by ComVest whose Registrable
Securities are being sold or by the managing underwriters, if any.
(k) In connection with any underwritten offering, make
appropriate officers of the Company available to ComVest for meetings with
prospective purchasers of the Registrable Securities and prepare and present to
potential investors customary "road show" material in each case in accordance
with the recommendations of the underwriters and in all respects in a manner
consistent with other new issuances of securities in an offering of a similar
size to such offering of the Registrable Securities.
6. OBLIGATIONS OF COMVEST TO PROVIDE INFORMATION. In connection with
the registration of the Registrable Securities, ComVest shall furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it
as shall be reasonably requested in writing by the Company to effect the
registration of such Registrable Securities, and ComVest shall execute any
customary documents in connection with such registration as the Company and its
legal counsel may reasonably request. At least ten (10) Business Days prior to
the first anticipated filing date of the Registration Statement and any
subsequent prospectus supplement or post-effective amendment, the Company shall
notify ComVest in writing of the information the Company requires of ComVest to
be included in the Registration Statement, prospectus supplement or
post-effective amendment.
7. EXPENSES OF REGISTRATION. The Company shall pay all expenses and
fees incurred in connection with each registration pursuant to Sections 2 and 3
of this Agreement, excluding underwriters' discounts and commissions, but
including without limitation all registration, filing and qualification fees,
word processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "comfort" letters required by or incident to
such performance and compliance), fees of the NASD or listing fees, messenger
and delivery expenses, all fees and expenses of complying with state securities
or blue sky laws, fees and disbursements of counsel for the Company, fees and
expenses of the Company and the underwriters relating to "road show" investor
presentations, except that ComVest shall bear and pay the (i) underwriting
commissions and discounts applicable to securities offered for its account in
connection with any registrations, filings and qualifications made pursuant to
this Agreement and (ii) any fees and expenses incurred in respect of counsel or
other advisors to ComVest.
8. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) The Company will indemnify and hold harmless ComVest, its
investment advisor and sub-advisors, its officers, directors, members, partners
and shareholders, and each person, if any, who controls ComVest within the
meaning of the Securities Act or the Exchange Act (each, a "COMVEST INDEMNIFIED
PERSON"), against any losses, claims, damages, liabilities or
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expenses (joint or several) incurred (collectively, "CLAIMS") to which any of
them may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereof or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus if used prior to the effective date of such Registration Statement,
or contained in the final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the SEC) or the omission
to state therein any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state or foreign securities law or any
rule or regulation under the Securities Act, the Exchange Act or any state or
foreign securities law (the matters in foregoing clauses (i) through (iii)
being, collectively, "VIOLATIONS"). The Company shall, subject to the provisions
of Section 8(b) and 8(c) below, reimburse ComVest, promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees for counsel to
ComVest and other reasonable costs and expenses incurred by it in connection
with the investigation or defense of any such violation or Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 8(a) shall not (i) apply to any Claim to the
extent it arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in connection with such
Registration Statement, preliminary prospectus, final prospectus or amendments
or supplements thereto, in each case which is made reliance upon and conformity
with information furnished in writing to the Company by or on behalf of any
ComVest Indemnified Person expressly for use in connection with the preparation
of the Registration Statement or any such amendment thereof or supplement
thereto; (ii) with respect to any preliminary prospectus, inure to the benefit
of any such person from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit of any
person controlling such person) if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected in the final
prospectus, as then amended or supplemented, if such final prospectus was timely
made available by the Company pursuant to Section 5(b) hereof; (iii) be
available to the extent that such Claim is based upon a failure of ComVest to
deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company pursuant to
Section 5(b) hereof; or (iv) apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
ComVest Indemnified Person and shall survive the transfer of the Registrable
Securities by ComVest pursuant to Section 9.
(b) ComVest will indemnify the Company and its officers,
directors and employees against any Claims arising out of or based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in connection with a Registration Statement, preliminary prospectus, final
prospectus or amendments or supplements thereto to the extent, and only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged
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omission was made in reliance upon and in conformity with information furnished
in writing to the Company, by or on behalf of ComVest, expressly for use in
connection with the preparation of the Registration Statement (including any
modifications, amendments or supplements thereto), subject to such limitations
and conditions as are applicable to the indemnification provided by the Company
in this Section 8; provided, however, that in no event shall any indemnity by
ComVest under this Section 8 exceed the amount of the net proceeds received by
ComVest in connection with the offering effected through such Registration
Statement.
(c) Promptly after receipt by an indemnified person under this
Section 8 of notice of the commencement of any action (including any
governmental action), such indemnified person shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 8,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the indemnified
person, provided, however, that an indemnified person shall have the right to
retain its own counsel with the reasonable fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the indemnified person
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified person and any other party
represented by such counsel in such proceeding. In such event, the Company shall
pay for only one legal counsel for ComVest, and such legal counsel shall be
selected by ComVest. The failure to deliver written notice to an indemnifying
party within a reasonable time after the commencement of any such action shall
not relieve such indemnifying party of any liability to the indemnified person
under this Section 8, except to the extent that the indemnifying party is
materially prejudiced in its ability to such action. The indemnification
required by this Section 8 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
(d) 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 person of an unconditional and irrevocable release from all
liability in respect of such claim or litigation.
(e) Notwithstanding the foregoing, to the extent that any
provisions relating to indemnification or contribution contained in the
underwriting agreements entered into among the Company, the underwriters and
ComVest in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in such underwriting agreements shall
be controlling as to the Registrable Securities included in the public offering.
9. CONTRIBUTION. To the extent any indemnification by an indemnifying
party is prohibited or limited under applicable law, the indemnifying party
agrees to contribute to the amount paid or payable by such indemnified party as
a result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified person on the other hand in connection
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with the statements or omissions which resulted in such Claim, as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party and the indemnified person shall be determined by reference to, among
other things, whether the untrue statement of a material fact or the omission to
state a material fact on which such Claim is based relates to information
supplied by the indemnifying party or by the indemnified person, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the forgoing, (a)
no contribution shall be made under circumstances where the payor would not have
been liable for indemnification under the fault standards set forth in Section
8, (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation and (c) contribution by any
seller of Registrable Securities shall be limited in amount to the net proceeds
received by such seller from the sale of such Registrable Securities. The
Company and ComVest agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in this Section.
10. REPORTS UNDER EXCHANGE ACT. With a view to making available to
ComVest the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit ComVest
to sell securities of the Company to the public without registration ("RULE
144"), the Company agrees to:
(i) make and keep public information available, as
those terms are understood and defined in Rule 144;
(ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(iii) furnish to ComVest so long as ComVest owns the
Shares or the Warrant such other information as may be reasonably requested to
permit ComVest to sell such securities pursuant to Rule 144 without
registration.
11. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by ComVest to any transferee of the Registrable
Securities or the Warrant held by ComVest if:
(a) the Warrant or the Registrable Securities, as the case may
be, are transferred or assigned in accordance with the requirements of Section
5.1(b) of the Purchase Agreement; (b) ComVest 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; (c) the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of the name and address of such transferee or
assignee; (d) at or before the time the Company receives the written notice
contemplated by clause; and (e) of this sentence, the transferee or assignee
agrees in writing to be bound by all of the provisions contained herein.
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12. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and ComVest. Any amendment or waiver affected in
accordance with this Section 12 shall be binding upon ComVest and the Company.
13. TERMINATION OF REGISTRATION RIGHTS. The obligations of the Company
under this Agreement shall terminate on the earlier of (a) the sale of the
Registrable Securities pursuant to an effective registration statement or
otherwise and (b) with respect to ComVest, if ComVest is eligible to sell under
Rule 144(k) under the Securities Act.
14. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities or the Warrant convertible into such Registrable Securities. If the
Company receives conflicting instructions, notices or elections from two or more
persons or entities with respect to the same Registrable Securities, the Company
shall act upon the basis of the instructions, notice or election received from
the registered owner of such Registrable Securities or Warrant.
(b) Any notice which is required to be given by this Agreement
must be in writing, and shall be given or served, unless otherwise expressly
provided herein, by depositing the same in the United States Mail, postpaid and
certified and addressed to the party to be notified, with return receipt
requested, or by delivering the same by courier or in person to such party (or,
if the party or parties to be notified be incorporated, to an officer of such
party). Notice deposited in the mail, postpaid and certified with return receipt
requested, shall be deemed received and effective upon the deposit in a proper
United States depository. Notice given in any other manner shall be effective
only if and when received by the party to be notified. For the purposes of
notice, the addresses of the parties for the receipt of notice hereunder are:
COMPANY: Xxxxxxx Imaging Corporation
00000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Ravine
Tel.: (000) 000-0000
Fax: (000) 000-0000
With copies to:
Xxxxxx X. Xxxxxx, XX
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Tel.: 000-000-0000
Fax: 000-000-0000
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ComVest: ComVest Investment Partners II LLC
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
e-mail: xxxxx@xxxxxxx.xxx
with a copy to: Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Annex and
Xxxxxxx X. Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party shall have the right from time to time, and at any time, to change its
address for the receipt of notice by giving at least five (5) days' prior
written notice of the change of its address to the other parties in the manner
specified herein.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and construed and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law rules or provisions. Each of the
parties submits to the jurisdiction of the federal courts whose district
encompass the Borough of Manhattan, City of New York or the state courts of the
State of New York sitting in the Borough of Manhattan, City of New York in
connection with any dispute arising under this Agreement or any of the
transactions contemplated hereby, and hereby waives, to the maximum extent
permitted by law, any objection, including any objections based on forum non
conveniens, to the bringing of any such proceeding in such jurisdictions
(e) This Agreement, together with the other Transaction
Documents, supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof, including the Term Sheet dated
as of December 29, 2004.
(f) Subject to the requirements of Section 11 hereof, this
Agreement shall inure for the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) This Agreement may be signed in two or more counterparts
(and by facsimile), each of which shall be deemed an original.
(h) The headings of this Agreement are for convenience of
reference only and shall not form part of, or affect the interpretation of, this
Agreement.
(i) If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of
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the remainder of this Agreement or the validity or unenforceability of this
Agreement in any other jurisdiction.
(j) The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to ComVest by vitiating the
intent and purpose of the transactions contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations
under this Agreement will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that
ComVest shall be entitled, in addition to all other available remedies in law or
in equity, to an injunction or injunctions to prevent or cure any breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions of this Agreement, without the necessity of showing economic loss and
without any bond or other security being required.
(k) Each of the parties hereto hereby waives to the fullest
extent permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated hereby and
thereby. Each of the parties hereto (i) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce that
foregoing waiver and (ii) acknowledges that it and the other hereto have been
induced to enter into this Agreement and the transactions contemplated hereby
and thereby, as applicable, by, among other things, the mutual waivers and
certifications in this Paragraph (k).
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by the undersigned as of the date set forth above.
XXXXXXX IMAGING CORPORATION
------------------------------------------------
Name: Xxxxxx Ravine
Title: President and Chief Executive Officer
COMVEST INVESTMENT PARTNERS II LLC
------------------------------------------------
Name:
Title:
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