EXHIBIT 10.8
[Execution Copy]
REGISTRATION RIGHTS AGREEMENT
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THIS AGREEMENT (this "Agreement") is made as of March 5, 1997, by and among
JETFAX, INC., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx, III,
Xxx X. Xxxxx and Xxxxxxxx Xxxxxx (each sometimes hereinafter referred to
collectively as the "Stockholders" and individually as a "Stockholder").
WHEREAS, the Stockholders are holders of an aggregate of 767,500 shares of
the Company's Common Stock (as defined herein); and
WHEREAS, the Company is contemplating an initial public offering of the
Company's securities and requires in connection therewith that the Stockholders
agree to a standoff agreement, and in consideration thereof the Company agrees
to grant such Stockholders the registration rights set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
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Definitions
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1.1 For purposes of this Agreement, the following terms shall have the
meanings set forth below:
(a) "Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(b) "Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Act.
(c) "Common Stock" shall mean the Company's common stock, $.01 par
value per share.
(d) "Preferred Stock" shall mean the Company's preferred stock,
$.01 par value per share.
1.2 Wherever used in this Agreement the words "include" or "including"
shall be construed as incorporating, also, "but not limited to" or "without
limitation", the word "day" means a calendar day unless otherwise specified,
the word "party" means each and every person whose signature is set forth at the
end of this Agreement, the word "law" (or "laws") means any statute, ordinance,
resolution, regulation, code, rule, order, decree, judgment, injunction, mandate
or other legally binding requirements of a government entity, the word "notice"
shall mean notice in writing (whether or not specifically stated) and shall
include notices, consents, approvals and any other written communication
contemplated under this Agreement and the words "business day" shall mean any
day other than Saturday, Sunday or a day on which commercial banks located in
San Francisco, California are required or authorized by law to close.
1.3 Certain other words and phrases are defined or described elsewhere in
this Agreement. Unless the context otherwise requires, words in the singular
number include the plural and vice versa. Use of the masculine, feminine or
neuter shall include each such other gender. Unless specified to the contrary,
references to Articles and/or Sections mean the particular Article or Section in
this Agreement. References to this Agreement shall include this Agreement as
varied or modified from time to time by the parties.
SECTION 2
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Registration Rights
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2.1 Optional Registrations. If at any time or times the Company shall
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determine to register any of its securities (for itself or for any other
securities holder of the Company) under the Act or any successor legislation
(other than a registration relating to stock option plans, employee benefit
plans or a Rule 145 transaction), and in connection therewith the Company may
lawfully register its Common Stock, the Company will give written notice thereof
to the Holders (as defined below) and will use its best efforts to include in
such registration and to effect the registration under the Act of all
Registrable Securities (as defined below) which such Holders may request in
writing delivered to the Company within five (5) days after receipt by such
Holders of the notice given by the Company; provided, however, if the
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managing underwriter for the Company advises the Company in writing that
including all or part of the Registrable Securities in such offering will
adversely affect the marketing of the proposed offering, then, in connection
with any such underwritten offering by the Company of any of its securities,
such registration of Registrable Securities shall be limited to not less than
five percent (5%) of the total number of shares to be sold in the case of an
initial public offering of the Company's securities, and ten percent (10%) of
the total number of shares to be sold in the case of a subsequent offering;
further provided, however, that such limited number of shares of Common Stock in
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such offering shall be taken from those owned (or obtainable upon the exercise
of rights with respect to other securities) by a group of holders requesting
registration consisting of the Holders and other holders having similar
registration rights to those of the Holders, and such limitation shall be
imposed upon the Holders and such other holders pro rata on the basis of the
total number of (i) shares of Registrable Securities owned by the requesting
Holders and (ii) shares of Common Stock owned, or obtainable by them upon the
exercise of rights with respect to other securities, by such other requesting
holders. In the event of such a limitation, shares of persons not having similar
registration rights will not be included in such registration. Notwithstanding
the foregoing, the Company shall not be obligated to take any action pursuant to
this Section 2.1 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act. The Company shall have
the right to select the managing underwriter or underwriters for any
underwritten public offering made pursuant to a registration under this Section
2.1. Subject to the foregoing, if such proposed registration is in connection
with an underwritten offering of Common Stock, upon request of any Holder, the
Company shall use its reasonable efforts to cause the managing underwriter
therefor to include in such underwritten offering the Registrable Securities as
to which the Holder requests such inclusion, on terms and conditions comparable
to those of the securities offered on behalf of the Company.
2.2 Definitions. For the purposes of Section 2:
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(a) The term "Registrable Securities" shall mean (i) the Common Stock
issued or issuable upon conversion of all outstanding shares of all series of
the Company's Preferred Stock that are so convertible and upon exercise of any
warrants of the Company for
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which there are contractual registration rights similar to those of the holders
of such Preferred Stock; (ii) the Common Stock held by the Stockholders as of
the date of this Agreement; and (iii) any Common Stock or other securities of
the Company issued or issuable with respect to the Common Stock described in
clauses (i) and (ii) by way of a stock dividend or stock split, or other
distribution, with respect to or in exchange for or replacement of such Common
Stock or other securities.
(b) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement.
(c) The term "Holder" means any person owning or having immediately
exercisable right to acquire Registrable Securities, including any of the
Stockholders, so long as such Stockholder holds any Registrable Securities.
2.3 Expenses of Registration.
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(a) All expenses of the registration and offering incurred in
connection with three registrations pursuant to Section 2.1 shall be borne by
the Company, except that the Holders shall bear underwriting commissions and
discounts attributable to their Registrable Securities being registered and the
fees and expenses of separate counsel, if any, for such Holders. All other
selling expenses relating to securities registered on behalf of the Holders and
all other registration expenses shall be borne by the Holders of such securities
pro rata. If the Company includes in any registration any securities to be
offered by it, all expenses thereof shall be borne solely by the Company.
(b) A proportionate share of the expenses of the registration and
offering incurred in connection with any registration pursuant to Section 2.1
after the third registration thereunder, shall be borne pro rata by the Holder
or Holders requesting the registration on the basis of the ratio of the number
of their shares so registered to the total number of shares included in such
registration.
2.4 No Transfer of Registration Rights. The rights to cause the Company
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to register securities granted the Stockholder under
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this Section 2 may not be assigned or transferred in whole or in part.
2.5 Standoff Agreement. The Holders shall, if requested by the managing
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underwriter or underwriters of any proposed firm underwritten public offering of
securities by the Company, agree not to sell any of their Registrable Securities
or any other securities of the Company owned by such Holders in any transaction
other than pursuant to such underwritten public offering for a period of up to
180 days beginning on the effective date of the applicable registration
statement. The Holders shall upon request execute a separate written agreement
confirming and agreeing as to the foregoing.
2.6 Registration Indemnification. In the event of any registration under
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the Act pursuant to this Section 2 of Registrable Securities of any Holder, the
Company will hold harmless such Holder and each underwriter of such securities
and each other person, if any, who controls such Holder or such underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities to which such Holder or such underwriter or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement, or any preliminary prospectus or final
prospectus or amendment or supplement thereto on the effective date thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse such Holder and each such
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
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Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or any preliminary prospectus or final prospectus or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
Holder or such underwriter specifically for use in the preparation thereof.
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It shall be a condition precedent to the obligation of the Company to
include in any registration statement any Registrable Securities then held by a
Holder that the Company shall have received an undertaking reasonably
satisfactory to it and its counsel from each Holder, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in the
preceding paragraph) the Company, each director of the Company, each officer of
the Company who shall sign such registration statement and any person who
controls the Company within the meaning of the Act, with respect to any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in
conformity with information furnished to the Company through an instrument duly
executed by the Holder specifically for use in the preparation of such
registration statement, preliminary prospectus or final prospectus or such
amendment or supplement thereto.
Promptly after receipt by an indemnified party under this Section 2.6
of notice of the commencement of any action involving a claim referred to in the
preceding provisions of Section 2.6, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and or assume the defense thereof, 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 incurred by the latter in connection with the
defense thereof.
2.7 Registration Procedures. Whenever the Company is required by this
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Agreement to use its best efforts to effect the registration of any securities,
the Company shall:
(a) prepare and file with the Commission a registration statement
with respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective as provided herein;
(b) prepare and file with the Commission all amendments and
supplements to such registration statement and any prospectus used therewith as
may be necessary to keep such registration
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statement effective and current and to comply with the provisions of the Act
with respect to the sale or other disposition of such securities;
(c) furnish to each Holder of such securities such number of copies
of a prospectus, including a preliminary pros pectus, in conformity with the
requirements of the Act, and such other documents, as such Holder may reasonably
request in order to facilitate the disposition of its securities; and
(d) use its best efforts to register or qualify the securities under
such other securities or "blue sky" or other applicable laws of such
jurisdictions within the United States as the Holder shall reasonably request,
to enable the Holder to consummate the public sale or other disposition in such
jurisdictions of such securities.
2.8 Rule 144 Undertakings. At any time and from time to time after the
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expiration of ninety (90) days following the earlier of the close of business on
such date as (i) a registration statement filed by the Company under the Act
becomes effective or (ii) the Company registers a class of securities under
Section 12 of the Securities Exchange Act of 1934, as amended, the Company shall
use its best efforts to make publicly available and available to the Holders,
pursuant to Rule 144 of the Commission under the Act, such information as is
necessary to enable the Holders to make sales of Registrable Securities pursuant
to that Rule and the Company shall use its best efforts to timely file with the
Commission all documents and reports required of the Company under the
Securities Exchange Act of 1934. The Company shall furnish to any Holder upon
request (after the preceding sentence shall have become applicable), a written
statement executed by the Company as to compliance with the current public
information requirements of Rule 144.
2.9 Cooperation. In connection with any registration of Registrable
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Securities pursuant to this Section 2, the Company agrees to:
(a) enter into such customary agreements (including, in the event of
any underwritten public offering, an underwriting agreement containing such
terms and provisions, as are customarily contained in underwriting agreements
for comparable offerings and, if no underwriting agreement is entered into, an
indemnification agreement on such terms as is customary in transactions of such
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nature) and take all such other actions as the Holders or the underwriters, if
any, participating in such offering and sale may reasonably request in order to
expedite or facilitate such offering and sale;
(b) furnish, at the request of the Holders or any underwriters
participating in such offering and sale, (i) a comfort letter or letters, dated
the date of the final prospectus with respect to the Common Stock registered
and/or the date of the closing for the sale of the Common Stock from the
independent certified public accountants of the Company and addressed to the
Holders and any underwriters participating in such offering and sale, which
letter or letters shall be in form and substance as is customarily given by
independent certified public accountants, and (ii) an opinion, dated the date of
the closing for the sale of the Common Stock, of the counsel representing the
Company with respect to such offering and sale addressed to the Holders and any
such underwriters, which opinion shall be in form and substance as is customary
in transactions of a similar nature for similar entities;
(c) make available for inspection by the Holders and the underwriters,
if any, participating in such offering and sale (which inspecting underwriters
shall, if reasonably possible, be limited to any manager or managers for such
participating underwriters), one counsel for the Holders and any such
underwriters, taken together, and one accountant or accounting firm retained by
the Holders and any such underwriters, taken together, all financial and other
records, corporate documents and properties of the Company, and supply such
additional information, as they shall reasonably request; provided that any such
party shall keep the contents thereof confidential in the manner prescribed by a
confidentiality agreement containing customary terms to be executed by the
persons who are provided such access.
2.10 Action to Suspend Effectiveness; Supplement to Registration Statement.
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In connection with any registration of Registrable Securities pursuant to this
Section 2:
(a) The Company will notify the Holders and their counsel promptly of
(i) any action by the Commission to suspend the effectiveness of the
registration statement covering the Common Stock requested to be registered or
the institution or threatening of any proceeding for such purpose (a "STOP
ORDER") or (ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Common Stock requested to be
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registered for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. Immediately upon receipt of any such notice, the
Holders shall cease to offer or sell any Common Stock pursuant to the
registration statement in the jurisdiction to which such Stop Order or
suspension relates. The Company will use all reasonable efforts to prevent the
issuance of any such Stop Order or the suspension of any such qualification and,
if any such Stop Order is issued or any such qualification is suspended, to
obtain as soon as possible the withdrawal or revocation thereof, and will notify
the Holders and their counsel at the earliest practicable date of the date on
which the Holders may offer and sell Common Stock pursuant to the registration
statement.
(b) For as long as sales of Registrable Securities are permitted
pursuant to a registration statement filed pursuant to this Section 2, the
Company will notify the Holders and their counsel promptly of the occurrence of
any event or the existence of any state of facts that, in the judgment of the
Company, should be set forth in such registration statement. Immediately upon
receipt of such notice, the Holders shall cease to offer or sell any Common
Stock pursuant to such registration statement, cease to deliver or use such
registration statement and, if so requested by the Company, return to the
Company, at its expense, all copies (other than permanent file copies) of such
registration statement. The Company will, as promptly as practicable, take such
action as may be necessary to amend or supplement such registration statement in
order to set forth or reflect such event or state of facts. The Company will
furnish copies of such proposed amendment or supplement to the Holders and their
counsel.
SECTION 3
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Miscellaneous
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3.1 Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California without giving effect to principles of
conflicts of law thereunder.
3.2 Successors and Assigns. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
3.3 Entire Agreement; Amendment; Waiver.
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(a) This Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subject hereof.
(b) This Agreement may be amended or modified upon the written
consent of the Company and holders in interest of not less than a majority of
the aggregate of the Common Stock then held by the Stockholders.
(c) Any provision of this Agreement may be waived with respect to
rights of any Stockholder by a written instrument executed by holders in
interest of not less than a majority of the aggregate of the Common Stock then
held by the Stockholders.
3.4 Notices. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be deemed effectively given
upon personal delivery, upon delivery by a nationally recognized overnight
courier service or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid, addressed to the Company at its
address set forth on the signature page of this Agreement and to a Stockholder
at his or her address set forth on the signature pages of this Agreement, or at
such other address as any party may designate by ten days prior written notice
given pursuant to the terms of this section.
3.5 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any party to this Agreement upon any breach or
default of any other party under this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or in any similar breach or
default occurring thereafter; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
3.6 Separability. In the event any provision of this Agreement shall be
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held to be invalid, illegal or unenforceable,
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the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
3.7 Expenses. Each party shall bear its own expenses and legal fees
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incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby other than as expressly stated herein.
3.8 Interpretation. All parties have been assisted by counsel in the
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preparation and negotiation of this Agreement and the transactions contemplated
hereby, and this Agreement shall be construed according to its fair language.
The rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
3.9 Titles. The titles of the sections of this Agreement are for
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convenience of reference only and are not to be considered in construing this
Agreement.
3.10 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one Agreement.
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[Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
JETFAX, INC.
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice President and Chief Financial Officer
Address:
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXX X. XXXXXX, III
/s/Xxxxxx X. Xxxxxx III
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Address:
c/o JetFax, Inc.
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
XXX X. XXXXX
/s/Xxx X. Xxxxx
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Address:
c/o JetFax, Inc.
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXXXX XXXXXX
/s/Xxxxxxxx Xxxxxx
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Address:
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
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