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EXHIBIT 4.9
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is entered into as of June 23, 2000, by and between ELTRAX SYSTEMS,
INC., a Minnesota corporation (the "Company"), and CEREUS TECHNOLOGY PARTNERS,
INC., a Delaware corporation (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company and the Investor have entered into that certain
Bridge Loan and Security Agreement dated as of June 14, 2000, as amended by
Amendment No. 1 thereto dated as of June 23, 2000 (as so amended, the "Loan
Agreement;" capitalized terms used but not specifically defined herein shall
have the meanings ascribed to such terms in the Loan Agreement), providing,
among other things, for the loan by the Investor of up to $5,000,000 in cash
pursuant to the terms of the Bridge Loan Note which is attached as Exhibit A to
the Loan Agreement and which, under certain circumstances, may be converted into
shares the Company's common stock, par value $.01 per share (the "Common
Stock");
WHEREAS, the Loan Agreement further provides that, if that certain
Agreement and Plan of Merger dated as of June 12, 2000 by and among the Company,
Solemn Acquisition Corporation and the Investor, as the same may be amended (the
"Merger Agreement") is terminated by the Investor under certain circumstances,
the Company will deliver to the Investor warrants to purchase shares of the
Common Stock pursuant to the terms and conditions of the Warrant Agreement which
is attached as Exhibit D to the Loan Agreement;
WHEREAS, the Company desires to grant to the Investor registration
rights with respect to the shares of Common Stock into which the Bridge Loan
Note may be converted and for which the Warrant Agreement may be exercised, and
the Investor desires to receive such registration rights, all in accordance with
the terms of this Agreement; and
WHEREAS, this Amended and Restated Registration Rights Agreement (a)
amends and restates that certain Registration Rights Agreement dated as of June
14, 2000 between the Company and the Investor, and (b) is the Registration
Rights Agreement referred to in the Loan Agreement, and the execution and
delivery of this Agreement by the Company and the Investor is a condition to the
closing of the transactions contemplated by the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. REGISTRABLE STOCK. For purposes of this Agreement, the term
"Registrable Stock" means all Common Stock into which the Bridge Loan Note has
been converted and for which the Warrant Agreement has been exercised, and any
Common Stock and other securities of the Company that may have been issued to
the Investor pursuant to the provisions of Section 1.2 of the Bridge Loan Note
and Sections 7 and 8 of the Warrant Agreement.
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2. DEMAND AND FORM S-3 REGISTRATIONS.
2A. REQUEST FOR REGISTRATION.
(i) At any time and from time to time for the period (the
"Demand Period") that is one (1) year after the later to occur of (x) the date
that the Bridge Loan Note is converted, and (y) the date that the Warrant is
exercised, the Investor may request an underwritten registration under the
Securities Act of 1933, as amended (the "Securities Act"), of all or part (but
not less than 100,000 shares) of its Registrable Stock (the "Demand
Registration"), subject to the terms and conditions of this Agreement. Any
request (a "Registration Request") for the Demand Registration shall specify the
approximate number of shares of Registrable Stock requested to be registered
(but not less than a majority of the total number of shares of Registrable Stock
then outstanding).
(ii) Subject to subsection (i) above and paragraph 2F, the
Investor will be entitled to request one (1) Demand Registration at any time
during the Demand Period.
(iii) A registration will not count as the Demand
Registration paid for by the Company (as provided in paragraph 5B) unless the
Investor is able to register and sell at least 50% of the Registrable Stock
requested to be included in such registration.
(iv) The Company will not include in any Demand Registration
any securities other than shares of Registrable Stock and securities to be
registered for offering and sale on behalf of the Company without the prior
written consent of the Investor. If the managing underwriter(s) of the offering
to be effected pursuant to the Demand Registration advise the Company in writing
that in their opinion the number of shares of Registrable Stock and, if
permitted hereunder, other securities in such offering, exceeds the number of
shares of Registrable Stock and other securities, if any, which can be sold in
an orderly manner in such offering within a price range acceptable to the
Investor, the Company will include in such registration, prior to the inclusion
of any securities which are not shares of Registrable Stock, the number of
shares of Registrable Stock requested to be included which in the opinion of
such underwriters can be sold in an orderly manner within the price range of
such offering.
2B. REGISTRATIONS ON FORM S-3. The Company shall use commercially
reasonable efforts to qualify for registration of its securities on Form S-3 or
any comparable or successor form or forms ("Form S-3"). After the Company has so
qualified, in addition to the rights set forth in paragraph 2A hereof, at any
time and from time to time (but subject to the proviso in paragraph 2B(i)
hereof) for the period that is one (1) year after the later to occur of (x) the
date that the Bridge Loan Note is converted, and (y) the date that the Warrant
Agreement is exercised, the Investor may make a Registration Request for
registration of not less than 100,000 shares of the Registrable Stock on Form
S-3 (the "S-3 Registration"). Such Registration Request shall be in writing and
shall state the number of shares of Registrable Stock proposed to be disposed of
and the intended method of distribution of such shares by the Investor.
(i) The Investor will be entitled to require the Company to
file two (2) registration statements on Form S-3; provided, however, that the
Investor may not require the
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Company to file a registration statement on Form S-3 more than once during
any calendar year.
(ii) A registration will not count as the S-3 Registration
paid for by the Company (as provided in paragraph 5B) unless the Investor is
able to register and sell at least 50% of the Registrable Stock requested to be
included in such registration.
(iii) The Company will not include in the S-3 Registration
any securities other than shares of Registrable Stock and securities to be
registered for offering and sale on behalf of the Company without the prior
written consent of the Investor. If the managing underwriter(s), if any, of the
offering to be effected pursuant to an S-3 Registration advise the Company in
writing that in their opinion the number of shares of Registrable Stock and, if
permitted hereunder, other securities in such offering, exceeds the number of
shares of Registrable Stock and other securities, if any, which can be sold in
an orderly manner in such offering within a price range acceptable to the
Investor, the Company will include in such registration, prior to the inclusion
of any securities which are not shares of Registrable Stock, the number of
shares of Registrable Stock requested to be included which in the opinion of
such underwriters can be sold in an orderly manner within the price range of
such offering.
2C. SELECTION OF UNDERWRITER. The Investor or the holders of a
majority of the then outstanding Registrable Stock proposed to be registered, as
the case may be, will have the right to select the managing underwriter or
underwriters to manage the offering, subject to the Company's approval, which
will not be unreasonably withheld, provided that the managing underwriter or
underwriters shall be the firm or firms that managed the Company's most recently
completed underwritten public offering of Common Stock unless the Investor or
the holders of a majority of the then outstanding Registrable Stock proposed to
be registered, as the case may be, shall object to such firm or firms for
reasons related to the ability of such firm or firms to effectively manage the
offering, and the Company may consent to the selection of such other managing
underwriter or underwriters in such event.
2D. DELAYED REGISTRATIONS. Notwithstanding anything in this
Section 2 to the contrary, the Company may delay any Demand Registration or S-3
Registration for a period of not more than sixty (60) days from the date a
Registration Request is made upon certification by an executive officer of the
Company that such registration might (i) materially interfere with or affect the
negotiation or completion of any transaction that is being contemplated by the
Company (whether or not a final decision has been made to undertake such
transaction) at the time the right to delay is exercised, or (ii) involve
initial or continuing disclosure obligations that would not be in the best
interests of the Company and its shareholders.
2F. TERMINATION OF REGISTRATION RIGHTS. The Investor's right to
request a Demand Registration, S-3 Registration or Piggyback Registration (as
hereinafter defined) shall terminate at such time as the Investor can sell all
of the Registrable Stock in accordance with Rule 144(k) under the Securities
Act.
3. PIGGYBACK REGISTRATIONS.
3A. RIGHT TO PIGGYBACK. If the Company proposes to register any of
its
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securities under the Securities Act (other than pursuant to the Demand
Registration, an S-3 Registration, a registration on Form S-4, a registration
solely in connection with an employee benefit or stock ownership plan or a shelf
registration filed under Rule 415(a)(1)(viii) promulgated under the Securities
Act) and the registration form to be used may be used for the registration of
Registrable Stock, then the Company will give prompt written notice to the
Investor of its intention to effect such a registration (the "Piggyback
Registration"). Subject to subparagraphs 3B and 3C below, the Company will
include in such registration all shares of Registrable Stock which the Investor
requests the Company to include in such registration by written notice given to
the Company within fifteen (15) days after the date of sending of the Company's
notice, subject to the terms and provisions of this Section 3.
3B. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
relates to an underwritten public offering of equity securities by the Company
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company will include in such
registration (i) first, the securities proposed to be sold by the Company, (ii)
second, any Registrable Stock requested to be included in such registration, pro
rata among the holders of such Registrable Stock on the basis of the number of
shares owned by each such holder, and (iii) third, other securities requested to
be included in such registration.
3C. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
holders of the Company's securities and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initially requesting such registration, the Company will include in such
registration (i) first, the Registrable Stock requested to be included in such
registration pro rata among the holders of such Registrable Stock on the basis
of the number of the Registrable Stock owned by each such holder; and (ii)
second, securities other than Registrable Stock.
4. REGISTRATION PROCEDURES. Whenever the Investor has requested that
any Registrable Stock be registered pursuant to this Agreement, the Company will
use its best efforts to effect the registration and the sale of such Registrable
Stock in accordance with the intended method of distribution thereof and will,
as expeditiously as possible (subject to the terms hereof):
(i) prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Registrable Stock and use its best
efforts to cause such registration statement to become effective, provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto in connection with a Demand Registration or S-3
Registration, as the case may be, the Company will furnish to the counsel
selected by the Investor copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel;
(ii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in
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connection therewith as may be necessary to keep such registration statement
effective for a period of not less than the reasonable time necessary to permit
the Investor to complete the distribution described in such registration
statement, and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of distribution by the
sellers thereof set forth in such registration statement;
(iii) furnish to the Investor such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as the Investor may reasonably request in order to
facilitate the disposition of the Registrable Stock owned by the Investor;
(iv) use its best efforts to register or qualify such
Registrable Stock under the securities or blue sky laws of such jurisdictions as
the Investor reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable the Investor to consummate
the disposition in such jurisdictions of the Registrable Stock owned by the
Investor, provided that the Company will not be required (i) to qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to general service of
process in any such jurisdiction;
(v) notify the Investor, 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 contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any the Investor, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the Investor, such prospectus
will not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(vi) use its best efforts to cause all such Registrable Stock to
be listed on each securities exchange on which similar securities issued by the
Company are then listed and to be qualified for trading on each system on which
similar securities issued by the Company are from time to time qualified;
(vii) provide a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such registration
statement and thereafter maintain such a transfer agent and registrar;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the Investor reasonably requests in order to expedite or facilitate the
disposition of such Registrable Stock;
(ix) make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent
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retained by any such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such underwriter, attorney, accountant
or agent in connection with such registration statement;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(xii) furnish to the Investor a copy, or upon request, a signed
counterpart, addressed to the Investor (and the underwriters, if any) of (a) an
opinion of counsel for the Company, dated the effective date of such
registration statement (or, if such registration includes an underwritten public
offering, dated the date of closing under the underwriting agreement), and (b) a
"comfort" letter, dated the effective date of such registration statement (or,
if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the independent public
accountants who have audited the Company's financial statements included in such
registration statement, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants letters delivered to the underwriters in underwritten
public offerings of securities and such other matters as the underwriter may
reasonably request.
5. REGISTRATION EXPENSES.
5A. DEFINITION. The term "Registration Expenses" means all
expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees, fees
and expenses of compliance with securities and blue sky laws, printing,
messenger and delivery expenses, and fees and expenses of counsel for the
Company and all independent certified public accountants, underwriters
(excluding underwriting discounts and commissions, which shall be paid by the
selling stockholders out of the proceeds of the offering) and other Persons
retained by the Company.
5B. PAYMENT. The Company shall pay the Registration Expenses in
connection with one (1) Demand Registration, or two (2) S-3 Registrations, and
any and all Piggyback Registrations. In connection with each Demand
Registration, the S-3 Registration and each Piggyback Registration, the Company
will reimburse the holders of Registrable Stock covered by
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such registration for the reasonable fees and disbursements of one counsel
chosen by the Investor.
6. INDEMNIFICATION.
6A. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the extent permitted by law, the Investor, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's or an underwriter's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder or underwriter
with a sufficient number of copies of the same, provided that the obligations of
the Company hereunder shall not apply to amounts paid in settlement of any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld). In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Investor unless otherwise provided in the underwriting
agreement.
6B. INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which the Investor is participating, the Investor will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by the Investor and stated to be specifically for use
therein, provided that (i) the obligation to indemnify will be limited to the
net amount of proceeds received by the Investor from the sale of Registrable
Stock pursuant to such registration statement and (ii) the obligations of the
Investor hereunder shall not apply to amounts paid in settlement of any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
if such settlement is effected without the consent of the Investor (which
consent shall not be unreasonably withheld).
6C. NOTICE; DEFENSE OF CLAIMS. Any Person entitled to
indemnification hereunder will give prompt written notice to the indemnifying
party of any claim with respect to which it seeks indemnification, and such
indemnifying party will, upon request of the indemnified party, assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
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party. If such defense is assumed, the indemnifying party will not be subject to
any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). An indemnifying
party who assumes the defense of a claim will not be obligated to pay the fees
and expenses of separate counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the written opinion of
counsel to the indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which case the indemnified party may retain its own counsel (which
counsel will be reasonably satisfactory to the indemnifying party) and the fees
and expenses of such counsel will be paid by the indemnifying party.
6D. CONTRIBUTION. If the indemnification provided for in this
Section 6 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 herein, 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 statements 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. The obligation to contribute will be limited to the
amount by which the net amount of proceeds received by the Investor from the
sale of Registrable Stock exceeds the amount of losses, liabilities, damages,
and expenses which the Investor has otherwise been required to pay by reason of
such statements or omissions.
6E. SURVIVAL. The indemnification and contribution provided for
under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements,
provided that the Investor shall not be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding the Investor as are required by the underwriters.
8. MISCELLANEOUS.
8A. NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights
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granted to the holders of Registrable Stock in this Agreement.
8B. ADJUSTMENTS AFFECTING REGISTRABLE STOCK. The Company will not
take any action, or permit any change to occur, with respect to its securities
for the purpose of materially and adversely affecting the ability of the
Investor to include the Registrable Stock in a registration undertaken pursuant
to this Agreement.
8C. NOTICES. All notices, requests and other communications
required or permitted under this Agreement (collectively, "notices") shall be in
writing and, sent or delivered in one of the manners expressly contemplated in
this Section 8C. If mailed, notices must be sent by prepaid first-class mail,
certified, return receipt requested, and shall be deemed to have been received
on the earlier of the date shown on the receipt or three (3) Business Days after
the post-xxxx date thereof. In addition, notices hereunder may be delivered by
hand in which event the notice shall be deemed effective when delivered or by a
nationally recognized overnight courier, in which event the notice shall be
deemed delivered the first Business Day after it is accepted by the courier for
next day delivery. All such notices shall be given to the parties hereto at the
following addresses:
(a) If to the Company:
Eltrax Systems, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a required copy to:
Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) If to the Investor:
Cereus Technology Partners, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a required copy to:
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Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxx, Esq.
Telecopier No.: (000) 000-0000
Any party hereto may change the address to which notices shall be
directed under this Section by giving written notice of such change to the other
parties.
8D. REMEDIES. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
8E. AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
no waiver, amendment, modification, termination or cancellation of this
Agreement, or of any of the terms or conditions hereof, shall be effective
unless made in writing signed by the Company and the Investor.
8F. SUCCESSORS AND ASSIGNS. This Agreement, and the rights and
obligations of the Investor hereunder, may be assigned by the Investor to any
Person to which shares of Registrable Stock are transferred by the Investor, and
such transferee shall be deemed the "Investor" and a holder of the Registrable
Stock for purposes of this Agreement, provided that such transferee provides
written notice of such assignment to the Company.
8G. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
8H. ENTIRE AGREEMENT. This Agreement, the Loan Documents and the
Merger Agreement embody the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter.
8I. HEADINGS. The headings of this Agreement are for convenience
only and do not constitute a part of this Agreement.
8J. GOVERNING LAW. The construction, validity and interpretation
of this Agreement will be governed by the internal laws of the State of Georgia,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Georgia or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Georgia.
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8K. FURTHER ASSURANCES. Each party to this Agreement hereby
covenants and agrees, without the necessity of any further consideration, to
execute and deliver any and all such further documents and take any and all such
other actions as may be necessary to appropriate to carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated
hereby.
8L. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document. Copies (whether photostatic, facsimile or
otherwise) of signatures hereto shall be deemed to be originals and may be
relied on to the same extent as the originals.
8M. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. If at any time
or from time to time after the date of this Agreement, the Company shall enter
into any agreement with any holder or prospective holder of any securities of
the Company giving such holder or prospective holder any registration rights the
terms and conditions of which are more favorable than the registration rights
granted to the Investor, then the parties hereto agree that the terms and
conditions of this Agreement shall be immediately amended, without any further
or additional action or notice by the parties hereto, so as to give the Investor
registration rights on terms and conditions no less favorable than the terms and
conditions of the registration rights granted to such holder or prospective
holder. The parties hereto further agree that no single amendment pursuant to
this Section 8M will preclude further or additional amendments upon further or
additional grants of registration rights by the Company.
8N. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Securities and Exchange
Commission that may permit sale of the Registrable Stock to the public without
registration, the Company agrees to use its reasonable efforts to:
(i) Make and keep public information regarding the Company
available as those terms are understood and defined in Rule 144 under the
Securities Act, at all times;
(ii) File with the Securities and Exchange Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), at any time after it has become subject to such reporting
requirements.
(iii) So long as a holder owns any Registrable Stock, furnish to
the holder forthwith upon written request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144, the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed as a holder of
Registrable Stock may reasonably request in availing itself of any rule or
regulation of the Securities and Exchange Commission allowing a holder of
Registrable Stock to sell any such securities without registration.
IN WITNESS WHEREOF, this Amended and Restated Registration Rights
Agreement has been executed and delivered by the duly authorized officers of the
parties hereto as of June 23, 2000.
11
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COMPANY:
ELTRAX SYSTEMS, INC.
By: /S/ Xxxxxxx X. Xxxxxxx, III
----------------------------------------
Its: Chief Financial Officer
-----------------------------------
INVESTOR:
CEREUS TECHNOLOGY PARTNERS, INC.
By: /S/ Xxxxxx X. Xxxxxxx
----------------------------------------
Its: Executive Vice President and Chief
Financial Officer
----------------------------------
12
